In this post, Khatija Hafesji of Monckton Chambers gives an overview of the new, draft Procurement Regulations for after the transition period.
Pursuant to paragraph 1(1) of Schedule 7 to the European Union (Withdrawal) Act 2018, the draft Public Procurement (Amendment etc) (EU Exit) Regulations 2020 have been laid before Parliament (“the Regulations”). These Regulations replace and revoke the earlier statutory instruments made for after the transition period (SI 2019/560 and SI 2019/623), both of which pre-date the EEA EFTA Separation Agreement. This again evidences the process of a series of amendments and replacements being made to regulations in connection with Brexit as discussed by Jack Williams in a recent talk (see slide below): first, the original deficiency correction regulation, then amendments to reflect the Withdrawal Agreement and then, perhaps, another series of amendments to reflect any future relationship agreement or other corrections.
Whilst the Regulations change little of the earlier statutory instruments, the changes they do make are designed to address the deficiencies in retained EU law and give effect to Title 8 of Part 3 of the Withdrawal Agreement and Title 5 of Part 3 of the EEA EFTA Separation Agreement.
Part 2 of the Regulations amends primary legislation. Part 3 amends subordinate legislation, including the Public Contracts Regulations 2015 (SI 2015/102), the Concession Contracts Regulations 2016 (SI 2016/273) and the Utilities Contracts Regulations 2016 (SI 2016/274), and other subordinate legislation. Part 4 amends, and also revokes, retained direct EU legislation. Part 5 provides for some rights derived from certain international agreements to cease.
By way of example, the changes appear to include inter alia: certain ‘steady state’ amendments, such as removing references to the OJEU; the introduction of a requirement to submit notices to a new UK e-notification service (replacing the requirement to send notices to the EU Publications Office); the transfer of the Commission’s function to revalue the main financial thresholds to the Minister for the Cabinet Office; replacements of ambulatory cross-references to thresholds in the relevant EU directive with sterling values contained in the Regulations themselves; and the Commission’s biannual review of thresholds is to be undertaken by the Minister for the Cabinet Office biannually.
The Regulations are subject to the derogation set out in Article 346 of the TFEU, which effectively overrides the obligation to comply with the Regulations where to do so would undermine the essential security interests of EU Member States. This has been made clear by inserting the text of Article 346 into the Regulations. Rights derived from Article 18 TFEU have also been disapplied.
Similar draft amendments, in the context of Defence and Security Public Contracts, have been made by the Draft Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2020.
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