Post-Brexit public procurement – new regulations published
On 19 November 2020 a new set of amending regulations were signed into law which will make changes to the Public Contracts Regulations 2015, the Concession Contracts Regulations 2016, and the Utilities Contracts Regulations 2016 (collectively, the Procurement Regulations).
These changes will become necessary following the end of the current Implementation Period at 23:00 GMT on 31 December 2020 (IP Completion Day) to ensure that the procurement regime can continue to operate.
The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (the 2020 Regulations) will mostly come into force on IP Completion Day, with the exception of Regulation 2 (which is already in force), and Regulations 7, 9, 11 and 26 (which will come into force 12 months after the day on which IP Completion Day falls).
You would be forgiven for thinking this is old news - we have, after all, already seen two lots of amending regulations (the Public Procurement (Amendment etc.) (EU Exit) Regulations 2019 (1), and the Public Procurement (Amendment etc.) (EU Exit) (No. 2) Regulations 2019 (2)) – and, broadly speaking, the 2020 Regulations don't change much of what we have already seen!
Instead, the 2020 Regulations will repeal both sets of regulations from 2019, and will consolidate them into a single set of regulations, making amendments to the Procurement Regulations as appropriate.
In general, the 2020 Regulations seek to remove certain EU specific references from the Procurement Regulations. For example, the 2020 Regulations remove the definition of "the Commission" and replace the requirement to publish to the OJEU with a requirement to publish notifications to the new UK e-notification service. There is not much new in the 2020 Regulations, and they do not depart significantly from the previous amendments from 2019.
There are perhaps a few amendments of note in the 2020 Regulations, if nothing else as they may give some indication as to the direction of travel for UK procurement policy. In particular, regulations 25 and 26 of the 2020 Regulations relate to the cessation of certain rights, namely, the removal of certain prohibitions on the grounds of nationality and the removal of rights under certain international agreements.
Regulation 25 of the 2020 Regulations sets out that any rights relating to Article 18 of the Treaty on the Functioning of the European Union and Article 4 of the Agreement on the European Economic Area (prohibition of discrimination on grounds of nationality) cease to be recognised and available in domestic law on IP Completion Day. This does raise the question whether a move towards a "Buy British" / "Buy Local" policy is on the horizon (at least for below threshold contracts), and we await further details on the direction of post-Brexit procurement reform in future national policy statements and the impending Green Paper on public procurement.
There are various transitional provisions in the Schedule to the 2020 Regulations that will be of immediate interest to contracting authorities. Firstly, paragraph 3 of the Schedule confirms that the 2020 Regulations will not apply to any procurements that have been commenced before IP Completion Day, so for existing procurements that have not yet been finalised contracting authorities should continue to comply with the Public Contracts Regulations 2015 without amendment.
Additionally, paragraph 4 of the Schedule confirms that the 2020 Regulations will not apply to any call-off contracts to be awarded under any existing framework agreements, or any framework agreement that is established following a procurement procedure which was launched before IP Completion Day (and, again, the Public Contracts Regulations 2015 will apply to the award of those call-off contracts without amendments).