Jenny Beresford-Jones examines changes to the Public Contracts Regulations to reflect the UK's membership of the Agreement on Government Procurement in its own right, and amendments relating to international trade agreements.
If you’re a follower of the Mills & Reeve blog you’ll be aware that we are expecting major legislative changes to the Public Contracts Regulations 2015 (“PCR 2015”) to be made following a recent government consultation on Transforming Public Procurement. The latest we know on that is that draft new regulations may be made available in the Autumn of this year, suggesting that the new regime could possibly come into force in 2022. You can watch our webinar on that here.
Ahead of that major change, however, we wanted to update you on a couple of other legislative changes that are happening in the interim.
Amendments reflecting the UK’s membership of the GPA in its own right
On 11th June the Public Procurement (Agreement on Government Procurement) (Amendment) Regulations 2021 came into force. The purpose of the these amendments is to write into the PCR 2015 the UK's legal obligations under the Agreement on Government Procurement (“GPA”).
What is the GPA?
This is an agreement on the conduct of procurement made under the umbrella of the WTO. The EU is a signatory, meaning that historically the UK was signed up to the GPA by virtue of its membership of the EU. When the UK left the EU, it signed up to the GPA on a standalone basis in its own right. The GPA sets out a kind of “baseline” for each member’s public procurement regime, in terms of duties owed around transparency, equal treatment, non-discrimination, and remedies. The UK’s current procurement regime goes well beyond the minimum requirements of the GPA.
What amendments have been made?
Amendments have been made to the PCR 2015 to reflect that fact that the UK is now a member of the GPA in its own right, and also to list out in a new schedule 1A the names of all those countries which are party to GPA. A new regulation 25A requires contracting authorities to treat suppliers in GPA countries no less favourably than UK-based suppliers. A new regulation 90A makes it clear that a contracting authority’s general duty at regulation 89 (to comply with the rules in the PCR 2015) is owed also to a supplier from another GPA country, where the procurement in question is within the scope of the GPA.
Amendments relating to international trade agreements
Still in draft form but expected in force soon are the Public Procurement (International Trade Agreements) (Amendment) Regulations 2021.
These amendments will give effect to our procurement obligations under international trade deals to which we were a party when we were part of the EU.
A new schedule 4A in the PCR 2015 will list out these trade deals, while a new regulation 25B requires contracting authorities to treat suppliers where a relevant international trade deal applies no less favourably than UK-based suppliers. As with the GPA amendments discussed above, a new regulation 90B states that a contracting authority’s general duty at regulation 89 (to comply with the rules in the PCR 2015) is owed also to a supplier from a country to which an international trade deal applies, where the procurement in question is within the scope of the trade deal.
Readers who (like us!) regularly need to use the PCR 2015 in their work will want to ensure they are referring to the latest consolidated version of the PCR 2015, so that these amendments are picked up.