Draft regulations have been published amending the Public Contracts Regulations 2015, the Utilities Contracts Regulations 2016 and the Concession Contacts Regulations 2016 (collectively, the Regulations) to prepare for the withdrawal of the UK from the EU.
The framework and principles of the procurement regime are not being changed and will continue to apply post-Brexit (whether or not the UK reaches agreement with the EU on the terms of its exit). The changes simply amend or remove provisions that would otherwise be inoperable or inappropriate once the UK has left the EU. The changes, which for the most part will apply prospectively (including to procurements already underway on exit day) include:
- Notices - the requirement to send notices to the EU Publications Office for publication in the OJEU is replaced with a requirement to submit notices to a new UK e-notification service; the EU standard forms will no longer be used for UK procurements as it is intended that the new UK e-notification service will elicit the relevant information in the form and manner in which it is to be submitted;
- Financial thresholds - the Minister for the Cabinet Office (MCO) will be responsible (in place of the European Commission) for re-valuing, every two years, the financial thresholds that trigger the application of the procurement rules;
- Reports – the requirements to provide the European Commission with reports will no longer apply, but some of those requirements will convert into obligations to provide reports to the MCO;
- Mandatory exclusion - the mandatory ground for exclusion for offences relating to fraud affecting the European Communities' financial interests is removed;
- e-Certis - the requirement for UK Contracting authorities to have recourse to the EU's e-Certis database is removed;
- Remedies – the duty to comply with the Regulations (and any remedies for non-compliance) will only be owed to economic operators in the UK (and Gibraltar); after exit economic operators in the EU/EEA will be treated as economic operators from countries that are contracting parties to the WTO Agreement on Government Procurement (GPA), with rights of access and remedies determined in accordance with GPA requirements; and
- GPA – the draft regulations preserve, for a period of eight months, the access and remedies currently available to economic operators in GPA states (and which will also be available to economic operators in EU/EEA states on the UK's exit from the EU); once the UK joins the GPA in its own right (rather than through the EU), which it expects to do on, or shortly, after exit day, it will be bound by its own independent commitments in respect of access and remedies for economic operators in GPA states.
A full copy of the draft amendment regulations can be found here and the related Explanatory Memorandum can be found here. The Explanatory Memorandum indicates that some deficiencies in the Regulations remain to be addressed and that further guidance will be available by the time the draft amendment regulations come into force.
A separate set of draft amendment regulations have been prepared in respect of the Defence and Security Public Contracts Regulations 2011 which can be found here.