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The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020

Type Scottish-Statutory-Instrument

Publication 2020-12-22

State In force

Jurisdiction Scotland

Department Queen's Printer for Scotland

Source legislation.gov.uk

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(b) in paragraphs (2) and (6)(a), for “Article 346 of the TFEU” substitute “regulation 7(2)”.

(16) In regulation 25(1) (contracts covering both activities listed in schedule 2 and activities involving defence or security aspects), for “Article 346 of the TFEU” substitute “regulation 7(2)”.

(17) In regulation 26(3) (reserved concession contracts), for “Article 24 of the Concession Contracts Directive” substitute “this regulation”.

(18) In regulation 29 (economic operators), omit paragraph (1).

(19) In regulation 33 (concession notice)—

(a) in paragraph (2)(a), after “Directive,” insert—

but as if— (i) in paragraph 3, “Article 34(2)” were a reference to regulation 36(3) of these Regulations, (ii) in paragraph 10, “date of dispatch” were a reference to the date on which the notice is submitted to the UK e-notification service for the purposes of these Regulations, and (iii) paragraph 15 (financing by EU funds) were omitted.

(b) in paragraph (2), omit the words after the end of sub-paragraph (b),

(20) In regulation 34 (concession contract award notice)—

(a) in paragraphs (1) and (2), for “send” substitute “submit”,

(b) in paragraph (3), for “A concession contract award” substitute “Subject to paragraph (4), a concession contract award”,

(4) In paragraph (3), the reference to Annex VII is a reference to that Annex, but as if— (a) in paragraph (7), “Article 41” were a reference to regulation 44 of these Regulations, (b) in paragraph (11)(c), “Article 8(3)” were a reference to regulation 8(6) and (7) of these Regulations, (c) paragraph (12) (financing by EU funds) were omitted, (d) in paragraph (14), “in the Official Journal of the European Union” read “on the UK e-notification service (within the meaning of the Concession Contracts (Scotland) Regulations 2016), and (e) in paragraph (15), “date of dispatch” were a reference to the date on which the notice is submitted to the UK e-notification service for the purposes of these Regulations.

(21) In regulation 35 (form and manner of publication of notices)—

(a) in paragraph (1)—

(i) in the words before sub-paragraph (a)—

(aa) for “sent” substitute “submitted”,

(bb) after “a notice)” insert “must be submitted to the UK e-notification service for publication.”,

(ii) omit sub-paragraphs (a) and (b),

(b) in paragraph (2)—

(i) for “EU Publications Office” substitute “the provider of the UK e-notification service”,

(ii) omit “the receipt of the notice and of”,

(iii) for “sent” substitute “submitted”,

(i) for “at national level” substitute “otherwise than on the UK e-notification service”,

(ii) for “by the EU Publications Office” substitute “on that service”,

(iii) for “by that Office” substitute “on that service”,

(iv) for the words from “it confirms” to the end substitute “the notice was submitted to that service”,

(d) in paragraph (4)—

(i) for “at national level” substitute “otherwise than on the UK e-notification service”,

(ii) for “sent to the EU Publications Office” substitute “submitted to that service”,

(iii) for “sending of the notice to that Office” substitute “submission of the notice to that service”,

(e) after paragraph (4) insert—

(5) In these Regulations, “the UK e-notification service” has the meaning given by regulation 52(5) of the Public Contracts (Scotland) Regulations 2015. (6) For the purposes of these Regulations, a notice of any description is submitted to the UK e-notification service if the information comprising the notice is entered in the portal in such form or manner as the portal may elicit it and in compliance with any specific instructions that are given within the portal about how the information, or any particular element of it, is to be entered.

(22) In regulation 36(1) (electronic availability of concession documents), for “in the Official Journal” substitute “on the UK e-notification service”.

(23) In regulation 40 (exclusion grounds)—

(a) in paragraph (1)—

(i) omit sub-paragraph (e),

(ii) in sub-paragraph (k) for “Article 38(4)” substitute “Article 38(4)(a), (b), (d), (e) or (f)”,

(b) in paragraph (9)(a)—

(i) omit “European Union law,”,

(ii) after “agreements or” insert “, subject to paragraphs (19) and (20),”,

(19) Where— (a) the United Kingdom has ratified an international agreement establishing obligations in any of the fields mentioned in paragraph (9)(a), and (b) the agreement is not already listed, the Scottish Ministers may make regulations providing that paragraph (9)(a) is to have effect as if the agreement were listed. (20) Where the United Kingdom has ceased to ratify an international agreement that is already listed, the Scottish Ministers may make regulations providing that paragraph (9)(a) is to have effect as if the agreement were not listed. (21) In paragraphs (19) and (20)— (a) “listed” means listed as described in paragraph (9)(a), and (b) where paragraph (9)(a) already has effect as if an agreement were listed, “already listed” includes that agreement.

(24) In regulation 42(3) (time limits for receipt of applications and tenders for the concession contract), for “sent” substitute “submitted”.

(25) In regulation 44(9) (concession contract award criteria), omit “the Europe 2020 strategy for smart,”.

(26) In regulation 46 (modification of concession contract during contract term)—

(a) in paragraph (3), for “send” substitute “submit”,

(b) in paragraph (4), after “Directive” insert—

, but as if— (a) paragraph 9 (financing by EU funds) were omitted, (b) in paragraph 11, “in the Official Journal of the European Union” read “on the UK e-notification service (within the meaning of the Concession Contracts (Scotland) Regulations 2016), and (c) in paragraph 12, “date of dispatch” were a reference to the date on which the notice is submitted to the UK e-notification service for the purposes of theseRegulations

(27) In regulation 47(1) (termination of concession contract)—

(a) after paragraph (a), insert “or”,

(b) after paragraph (b), omit “; or”,

(28) In regulation 51 (duty owed to economic operators)—

(a) in paragraph (1)—

(i) for “enforceable EU obligation” substitute “retained EU obligation that is enforceable by virtue of section 4 of the European Union (Withdrawal) Act 2018”,

(ii) for “an EEA state” substitute “the United Kingdom or Gibraltar”,

(b) for paragraph (2) substitute—

(2) The duty owed in accordance with paragraph (1) is a duty owed also to an economic operator from a country other than the United Kingdom, but only where Condition 1, Condition 2 or Condition 3 applies to the procurement concerned.

(3) Condition 1 is that— (a) at the relevant time the economic operator is from a GPA state, (b) the procurement may result in the award of a concession contract of any description, and (c) immediately before IP completion day that GPA state had agreed with the EU that the GPA shall apply to a concession contract of that description. (3A) Condition 2 is that— (a) at the relevant time the economic operator is from a country which, immediately before IP completion day, was a member State other than the United Kingdom, (b) the procurement may result in the award of a concession contract of any description, and (c) immediately before IP completion day the EU had agreed with a GPA state that the GPA shall apply to a concession contract of that description.

(d) in paragraph (4)—

(i) for “For the purpose of paragraph (2)(b), a relevant bilateral agreement applies if” substitute “Condition 3 is that”,

(ii) in sub-paragraph (a)—

(aa) for “there is” substitute “immediately before IP completion day there was”,

(bb) for “is bound” substitute “was bound”,

(e) after paragraph (4) insert—

(4A) Paragraph (4)(b) is to be applied as if the United Kingdom were a member State.

(f) in paragraph (5)—

(i) omit the definition of “GPA”,

(ii) in the definition of “GPA state”, for “, other than an EEA state, which at the relevant time is” substitute “which immediately before IP completion day was”,

(iii) in the definition of “relevant time”—

(aa) for “sent” substitute “submitted”,

(bb) for “Publications Office of the European Union” substitute “UK e-notification service”.

(29) In regulation 52(5)(a) (enforcement of duties through the courts)—

(a) for “sent” substitute “submitted”,

(b) for “to the Official Journal” substitute “to the UK e-notification service”,

(30) In regulation 55 (ineffectiveness orders)—

(a) in paragraph (5) for “in the Official Journal” substitute “on the UK e-notification service”,

(b) for paragraph (6)(a) substitute—

(a) the contracting authority submitted to the UK e-notification service for publication a voluntary ex ante transparency notice expressing its intention to enter into the contract or to conclude the framework agreement and containing— (i) the name and contact details of the contracting authority, (ii) a description of the object of the contract or framework agreement, (iii) a justification of the decision of the contracting authority to award the contract or conclude the framework agreement without prior publication of a contract notice, (iv) the name and contact details of the economic operator to be awarded the contract or to become party to the framework agreement, and (v) any other information which the contracting authority considered useful, and

(31) In Part 6 (reports), before regulation 60 insert—

(60ZA) (1) Regulations under these Regulations are to be made by Scottish statutory instrument subject to the negative procedure. (2) Regulations under these Regulations may make supplementary, incidental, transitional or saving provision.

(32) In schedule 1 (activities constituting works), after “Council Regulation (EEC) No 3037/90 on the statistical classification of economic activities in the European Community” insert “as that Regulation had effect in EU law immediately before IP completion day”.

Amendment commenced 12 months after IP completion day

9

(1) The Concession Contracts (Scotland) Regulations 2016 (as amended by regulation 8) are further amended as follows.

(2) Omit regulation 51(2) to (5) (duty owed to economic operators).

CHAPTER 4

Amendment of the Procurement (Scotland) Regulations 2016

10

(1) The Procurement (Scotland) Regulations 2016[^f00031] are amended as follows.

(2) In regulation 7 (publication of contract notices, prior information notices and award notices on the Public Contracts website)—

(a) in paragraph (1) for “an EU regulated procurement” substitute “a higher value regulated procurement”,

(b) in paragraph (4), after “Directive” insert—

, but as if— (a) in paragraph 2, reference to “for the reasons set out in the second and third subparagraphs of Article 53(1),” were omitted, (b) paragraph 24 (financing by EU funds) were omitted, (c) in paragraph 26, “in the Official Journal of the European Union” read “on the Public Contracts website”, (d) in paragraph 28, “date of dispatch” were a reference to the date on which the notice is submitted to the Public Contracts website

, but as if— (a) in section I— (i) in paragraph 2, reference to “for the reasons set out in the second and third subparagraphs of Article 53(1),” were omitted, (ii) in paragraph 9 “date of dispatch” were a reference to the date on which the notice is submitted to the Public Contracts website, and (b) in section II, paragraph 12 were omitted

(d) in paragraph (7), after “Directive” insert—

, but as if— (a) in paragraph 9, “referred to in Article 67” were omitted, (b) in paragraph 11(b), the words “member State or from a third” were omitted, (c) paragraph 15 (financing by EU funds) were omitted, (d) in paragraph 17, “in the Official Journal of the European Union” read “on the Public Contracts website”, (e) in paragraph 18, “date of dispatch” were a reference to the date on which the notice is submitted to the Public Contracts website

(3) In regulation 8(1) (selection of tenderers: exclusion of economic operators on grounds of criminal activity)—

(a) omit sub-paragraph (e),

(b) in sub-paragraph (k), for “Article 57(1)” substitute “Article 57(1)(a), (b), (d), (e) or (f)”,

(4) In regulation 10 (selection of tenderers: selection criteria), omit paragraph (5),

(5) In regulation 11 (technical specifications)—

(a) in paragraph (8), for “adopted by a legal act of the EU” substitute “imposed by retained EU law”,

(b) in paragraph (10), before sub-paragraph (a), omit “to the extent that they are compatible with EU law,”.

CHAPTER 5 — AMENDMENT OF OTHER SUBORDINATE LEGISLATION

The Public Contracts (Scotland) Regulations 2012

11

(1) To the extent that the Public Contracts (Scotland) Regulations 2012[^f00032] (“the 2012 Public Contracts Regulations”) continue to have prospective effect, their effect is modified as follows.

(2) The 2012 Public Contracts Regulations have prospective effect as if—

(a) all references in them to a “member State” continued to include the United Kingdom,

(b) all requirements to send any notice to the Official Journal of the European Union were instead a requirement to submit the notice to the UK e-notification service for publication,

(c) all provisions relating or referring to such a requirement, or to the publication of such a notice in that Journal, were instead references to that requirement as modified by sub-paragraph (b) and to the publication of that notice on the UK e-notification service,

(d) in regulation 9(5) (which provides for the definition of certain technical specifications), the words “and to the extent that those provisions are compatible with EU obligations” were omitted,

(e) regulation 14(2) (which requires certain reports to be supplied to the European Commission on request) were omitted,

(f) in regulation 25(4)(a) (which provides for evidence of certain environmental management measures)—

(i) in sub-paragraph (i)—

(aa) sub-paragraph (aa) were omitted,

(bb) in sub-paragraph (ii), the words “European or” were omitted,

(ii) in sub-paragraph (ii) for “established in any relevant State conforming to EU law or the relevant European standard or” there was substituted “meeting any”,

(g) regulation 30(7)(e), (8) and (9) (which relate to State aid) were omitted,

(h) regulation 32(13) (which provides for the provision of certain reports requested by the European Commission) were omitted,

(i) regulation 40(2) (which requires certain information to be provided for the European Commission) were omitted,

(j) in regulation 47(1)(a) (which makes compliance with certain obligations a duty owed to economic operators), the words “any enforceable EU obligation” referred instead to “any retained EU obligation that is enforceable by virtue of section 4 of the European Union (Withdrawal) Act 2018”.

(3) In paragraph (2)(b) and (c), “the UK e-notification service” has the meaning given by regulation 52(5) of the Public Contracts (Scotland) Regulations 2015.

(4) Where—

(a) immediately before IP completion day, a procurement has been commenced,

(b) on or after IP completion day, a contract is awarded or any other act is done, pursuant to that procurement, and

(c) that award or other act would, if it had occurred before IP completion day, have been covered by an exemption from requirements of the 2012 Public Contracts Regulations by virtue of any provision in those Regulations,

that award or other act is covered by that exemption on and after IP completion day regardless of whether the terms used to define that exemption in the 2012 Public Contracts Regulations would otherwise have been apt to continue to achieve that effect on and after IP completion day.

(5) Paragraph 11 in Part 4 of the schedule applies for the purposes of paragraph (4) as it applies for the purposes of that Part as if the reference to “the second commencement date” was a reference to the date on which paragraph (4) comes into force.

The Utilities Contracts (Scotland) Regulations 2012

12

(1) To the extent that the Utilities Contracts (Scotland) Regulations 2012[^f00033] (“the 2012 Utilities Regulations”) continue to have prospective effect, their effect is modified as follows.

(2) The 2012 Utilities Regulations have prospective effect as if—

(a) all references in them to a “member State” continued to include the United Kingdom,

(b) all requirements to send any notice to the Official Journal of the European Union were instead a requirement to submit the notice to the UK e-notification service for publication,

(c) all provisions relating or referring to such a requirement, or to the publication of such a notice in that Journal, were instead references to that requirement as modified by sub-paragraph (b) and to the publication of that notice on the UK e-notification service,

(d) regulation 7(7) (which relates to information requested by the European Commission) were omitted,

(e) in regulation 8(3) (which provides for certain information to be sent to or for the European Commission)—

(i) in sub-paragraph (a), the words from “5,000,000 euro” in the words before sub-paragraph (i) to “documents” at the end of sub-paragraph (xiii) read “£4,423,600, submit, within 48 days of the award, a contract award notice to the UK e-notification service for publication, containing the information referred to in regulation 68(2)(a) of the Utilities Contracts (Scotland) Regulations 2016”,

(ii) in sub-paragraph (b)—

(aa) “400,000 euro” read “£353,890”,

(bb) “5,000,000 euro” read £4,423,600”,

(cc) sub-paragraph (ii) read as follows—

(ii) if the Minister requests that information in relation to any such contract, forthwith send it to the Minister.

(f) in regulation 12(5) (which provides for the definition of certain technical specifications), the words “and to the extent that those requirements are compatible with EU obligations” were omitted,

(g) in regulation 24(3)(a) (which provides for evidence of certain environmental management measures)—

(i) in sub-paragraph (i)—

(aa) sub-paragraph (aa) were omitted,

(bb) in sub-paragraph (bb) the words “European standard or” were omitted, and

(ii) in sub-paragraph (ii) for “established in any relevant State conforming to EU law or the relevant European standard or” there was substituted “meeting any”,

(h) regulation 30(7)(e), (8) and (9) (which relate to State aid) were omitted,

(i) in regulation 31(2) (which provides for determining the country of origin of goods for certain purposes), the words from “in accordance” to the end read “as it would be determined for the purposes of Part 1 of the Taxation (Cross-Border Trade) Act 2018 if the products were chargeable goods within the meaning of that Part”,

(j) regulation 38(2) (which provides for the provision of certain reports requested by the European Commission) were omitted,

(k) regulation 39(5) (which makes provision about reports for onward transmission to the European Commission) were omitted,

(l) in regulation 44(1) (which makes compliance with certain obligations a duty owed to economic operators), the words “any enforceable EU obligation” referred instead to “any retained EU obligation that is enforceable by virtue of section 4 of the European Union (Withdrawal) Act 2018”.

(3) In paragraph (2)(b), (c) and (e), “the UK e-notification service” has the meaning given by regulation 52(5) of the Public Contracts (Scotland) Regulations 2015.

(4) Where—

(a) immediately before IP completion day, a procurement has been commenced,

(b) on or after IP completion day, a contract is awarded or any other act is done, pursuant to that procurement, and

(c) that award or other act would, if it had occurred before IP completion day, have been covered by an exemption from requirements of the 2012 Utilities Regulations by virtue of any provision in those Regulations,

that award or other act is covered by that exemption on and after IP completion day regardless of whether the terms used to define that exemption in the 2012 Utilities Regulations would otherwise have been apt to continue to achieve that effect on and after IP completion day.

(5) Paragraph 11 of Part 4 of the schedule applies for the purposes of paragraph (4) as it applies for the purposes of that Part as if the reference to “the second commencement date” was a reference to the date on which paragraph (4) comes into force.

PART 4 — AMENDMENT OF RETAINED DIRECT EU LEGISLATION

Commission Implementing Regulation (EU) 2016/7

13

(1) Commission Implementing Regulation (EU) No 2016/7 of 5th January 2016 establishing the standard form for the European Single Procurement Document[^f00034] is amended as follows.

(2) In Article 1—

(a) for the words from the beginning to “2016, the” substitute “The”,

(b) for “European single procurement document” substitute “Single Procurement Document”,

(c) for “Article 59 of Directive 2014/24/EU” substitute “regulation 60 of the Public Contracts (Scotland) Regulations 2015[^f00035]”.

SCHEDULE — TRANSITIONAL AND SAVINGS PROVISIONS

PART 1 — INTERPRETATION

Interpretation of Schedule

1

(1) In this Schedule—

“amendment” includes modification and revocation,

“the Procurement Regulations” means the following and, in relation to any procedure, means whichever of the following applies to that procedure— the Public Contracts (Scotland) Regulations 2012, the Utilities Contracts (Scotland) Regulations 2012, the Public Contracts (Scotland) Regulations 2015, the Concession Contracts (Scotland) Regulations 2016, the Utilities Contracts (Scotland) Regulations 2016,

“the second commencement date” is defined by paragraph 10,

“steady state amendments” is defined by paragraph 2.

(2) In this Schedule, the following have the same meaning as in the Procurement Regulations—

(a) contracting authority,

(b) design contest,

(d) economic operator,

(e) framework agreement,

(f) notices on the existence of a qualification system

(g) periodic indicative notice,

(h) prior information notice,

(i) utility,

(j) voluntary ex ante transparency notice.

(3) None of the savings in this Schedule imply any limitation of the scope of any of the other savings in this Schedule.

PART 2 — PROCUREMENTS PENDING ETC. ON IP COMPLETION DAY

Meaning of “steady state amendments”

2

In this Part, “steady state amendments” means—

(a) amendments made by these Regulations, and

(b) any other amendments, including future amendments, to the Procurement Regulations that—

(i) come into force on, or begin to apply from, IP completion day or any time after IP completion day, and

(ii) are not made by or under any of sections 7A, 7B and 7C and paragraphs 11G and 11M of Schedule 2 of the European Union (Withdrawal) Act 2018[^f00036].

Saving for procedures launched, but not finalised, before IP completion day

3

(1) Steady state amendments do not affect any procedure launched by a contracting authority or a utility under the Procurement Regulations if the procedure—

(a) was launched before IP completion day, and

(b) was not yet finalised by IP completion day.

(2) But regulation 62 (recourse to e-Certis) of the Public Contracts (Scotland) Regulations 2015 (which is omitted by regulation 4(44) of these Regulations) ceases to be saved at the beginning of the day that is 9 months after the day on which IP completion day falls.

Meaning of ‘procedure’ 3 In sub-paragraph (1), “procedure” includes— a a procedure using a dynamic purchasing system, b a procedure for which the call for competition takes the form of— i a prior information notice, ii a periodic indicative notice, or iii a notice on the existence of a qualification system.

Meaning of ‘launched’ 4 For the purposes of sub-paragraph (1), a procedure is launched— a when a call for competition or any other invitation to submit applications has been made in accordance with the Procurement Regulations, b where the Procurement Regulations do not require such a call or invitation, when the contracting authority or utility contacted economic operators in relation to the specific procedure.

Meaning of ‘finalised’ 5 For the purposes of sub-paragraph (1), a procedure is finalised— a upon publication of a contract award notice in accordance with the Procurement Regulations, b where the Procurement Regulations do not require the publication of such a notice, upon conclusion of the relevant contract, c where the contracting authority or utility decided not to award a contract, upon informing the tenderers, or persons otherwise entitled to submit applications, of the reasons why the contract was not awarded.

Saving for call-off procedures under certain framework agreements

4

(1) If the condition in sub-paragraph (2) is met, steady state amendments do not affect any procedure relating to the performance of a framework agreement, including the award of contracts based on such an agreement, under—

(a) regulation 34(3) to (10) of the Public Contracts (Scotland) Regulations 2015,

(b) regulation 49(3) to (6) of the Utilities Contracts (Scotland) Regulations 2016.

(2) The condition is that the framework agreement—

(a) was concluded before IP completion day and had neither expired nor been terminated before IP completion day, or

(b) was concluded after IP completion day in accordance with a procedure to which paragraph 3 applied.

Transitional modification of the Procurement Regulations

5

(1) In relation to a procedure to which paragraphs 3 or 4 apply, the Procurement Regulations are to be read, on and after IP completion day, and so far as the context permits or requires, as if—

(a) any reference (however expressed) to a member State or EEA state included the United Kingdom,

(b) any reference (however expressed) to—

(i) EU law,

(ii) any particular EU Treaty or any part of it,

(iii) any EU instrument, or other document of an EU entity or of the EU, or any part of any such instrument or document,

(iv) any part of EU law not falling within sub-paragraph (ii) or (iii),

(v) any tax, duty, levy or interests of the EU, or

(vi) any arrangements involving, or otherwise relating to, the EU of a kind not falling within sub-paragraph (i), (ii), (iii), (iv) or (v),

were a reference to any such thing (including any such thing as may have existed previously) so far as it is applicable to and in the United Kingdom by virtue of the relevant withdrawal provisions,

(d) any reference (however expressed) to a citizen of the EU or a national of the EEA included a United Kingdom national (within the meaning given by Article 2(d) of the withdrawal agreement),

(e) any reference to an enforceable EU obligation were a reference to an obligation that is enforceable by virtue of section 7A or 7B of the European Union (Withdrawal) Act 2018[^f00037], and

(f) such other modifications were made as are necessary for any purpose of the relevant withdrawal provisions and are capable of being ascertained from any such purpose or otherwise from those provisions.

(2) In sub-paragraph (1), “relevant withdrawal provisions” means—

(a) Title 8 of Part 3 of the withdrawal agreement (ongoing public procurement and similar procedures),

(b) Title 5 of Part 3 of the EEA EFTA separation agreement (ongoing public procurement and similar procedures).

PART 3 — PROVISIONS COMMENCED ON IP COMPLETION DAY

Procurement involving contracting authorities or utilities from other member States

6

(1) This paragraph applies in relation to the omission, by these Regulations, of—

(a) regulation 40 of the Public Contracts (Scotland) Regulations 2015 (procurement involving contracting authorities from different member States),

(b) regulation 55 of the Utilities Contracts (Scotland) Regulations 2016 (procurement involving utilities from different member States).

(2) Those omissions do not imply—

(a) any prohibition of the activities authorised by the omitted regulations (which activities might, accordingly, be carried on to any extent that would have been lawful if the omitted regulations had never existed), or

(b) that any matters provided for in those regulations are necessarily to have a different effect unless so required by applicable law (including rules for resolving any conflicts between the laws of different jurisdictions).

Saving of implied power to terminate contracts

7

(1) This paragraph applies where—

(a) a contract was awarded before IP completion day, and

(b) immediately before IP completion day, the contract contained a power—

(i) implied by regulation 73(3) of the Public Contracts (Scotland) Regulations 2015 to terminate the contract on the ground mentioned in regulation 73(1)(c) of those Regulations,

(ii) implied by regulation 47(3) of the Concession Contracts (Scotland) Regulations 2016 to terminate the contract on the ground mentioned in regulation 47(1)(c) of those Regulations, or

(iii) implied by regulation 87(3) of the Utilities Contracts (Scotland) Regulations 2016 to terminate the contract on the ground mentioned in regulation 87(1)(c) of those Regulations.

(2) On and after IP completion day, that power continues despite the omission, by these Regulations, of regulations 73(1)(c), 47(1)(c) or 87(1)(c), as the case may be.

Saving of regulation 55(5) of the Concession Contracts Regulations 2016

8

The amendment made by these Regulations to regulation 55(5) of the Concession Contracts (Scotland) Regulations 2016 (application of the first ground of ineffectiveness) does not apply where the contract referred to in regulation 55(5) was awarded before IP completion day.

Saving in relation to voluntary ex ante transparency notices

9

(1) This paragraph applies in relation to the amendments made by these Regulations to—

(a) regulation 91(7) of the Public Contracts (Scotland) Regulations 2015,

(b) regulation 104(7) of the Utilities Contracts (Scotland) Regulations 2016,

(2) Those amendments do not apply in relation to a voluntary transparency notice that was published in the Official Journal of the European Union if the notice was sent, before IP completion day, to be so published.

PART 4 — PROVISIONS COMMENCED 12 MONTHS AFTER IP COMPLETION DAY

Saving in relation to procurements commenced before regulations 5, 7 and 9 come into force

10

The amendments made by regulations 5, 7 and 9 do not affect any procurement commenced before the date on which those amendments come into force (“the second commencement date”).

11

For the purposes of this Part, a procurement has been commenced before the second commencement date if, before that date—

(a) a notice has been submitted to the UK e-notification service in accordance with applicable Procurement Regulations in order to—

(i) invite offers or requests to be selected to tender for or to negotiate in respect of a proposed contract, framework agreement or dynamic purchasing system, or

(ii) publicise an intention to hold a design contest,

(b) the contracting authority or utility has had published any form of advertisement seeking offers or expressions of interest in a proposed contract, framework agreement or dynamic purchasing system, or

(i) seek expressions of interest or offers in respect of a proposed contract, framework agreement or dynamic purchasing system, or

(ii) respond to an unsolicited expression of interest or offer received from that economic operator in relation to a proposed contract, framework agreement or dynamic purchasing system.

12

For the purposes of this Part, a procurement covers the whole of the procedures which stem from that commencement.

13

Accordingly, for example, if a contract notice in relation to a proposed framework agreement under the Public Contracts (Scotland) Regulations 2015 has, before the second commencement date, been submitted as described in paragraph 11(a), paragraph 10 applies to the award of any contracts based on that framework agreement regardless of whether the relevant specific procedure for the award of any such contract under regulation 34(6) to (10) of the Public Contracts (Scotland) Regulations 2015 had itself been commenced before the second commencement date.

14

Procedures taken for the purpose of modifying a contract or framework agreement are not to be regarded, for the purposes of paragraph 12, as stemming from the commencement of the procurement from which the award of that contract or framework agreement had itself stemmed.

15

A procedure commenced as described in paragraph 11(a)(i), (b) or (c) is not to be regarded, for the purposes of paragraph 12, as stemming from the commencement of any design contest that had previously been held in relation to the subject-matter of the procurement.

Signed

KATE FORBES — A member of the Scottish Government — 22nd December 2020

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations revoke and replace the Public Procurement etc. (Scotland) (Amendment) (EU Exit) Regulations 2019 (S.S.I. 2019/112 – “the first exit S.S.I.”), the Public Procurement etc. (Scotland) (Amendment) (EU Exit) Amendment Regulations 2019 (S.S.I. 2019/114 – “the second exit S.S.I.”) and the Public Procurement etc. (Scotland) (Amendment) (EU Exit) Amendment (No. 2) Regulations 2019 (S.S.I. 2019/414 –“the third exit S.S.I.”). The second exit S.S.I. and the third exit S.S.I. amend the first exit S.S.I. As a result, the revoked Regulations will not come into force.

These Regulations are made in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 (c.68) and paragraph 1(1) and (3) of Part 1 of the European Union (Withdrawal) Act 2018 (c.16) in order to address failures of retained EU law to operate effectively and other deficiencies arising from the withdrawal of the UK from the European Union. Many of the provisions in these Regulations are unchanged from the first S.S.I. (as amended by the second exit S.S.I. and the third exit S.S.I.), but additional deficiencies are addressed and some of the original provisions are changed.

These Regulations make amendments in the field of public procurement. Part 2 amends the Procurement Reform (Scotland) Act 2014 (asp 12). Part 3 amends secondary legislation. In particular, Chapters 1, 2, 3, 4, and 5 of Part 3 amend the Public Contracts (Scotland) Regulations 2015 (S.S.I. 2015/446), the Utilities Contracts (Scotland) Regulations 2016 (S.S.I. 2016/49), the Concession Contracts (Scotland) Regulations 2016 (S.S.I. 2016/65), the Procurement (Scotland) Regulations 2016 (S.S.I. 2016/145), the Public Contracts (Scotland) Regulations 2012 (S.S.I. 2012/88) and the Utilities Contract (Scotland) Regulations 2012 (S.S.I. 2012/89) respectively. Part 4 amends retained direct EU legislation. The schedule makes transitional and savings provisions.

These Regulations are also made in exercise of the powers conferred by paragraph 11G(1) and (3) of schedule 2 of the European Union (Withdrawal) Act 2018 in order to implement Title 8 (ongoing public procurement and similar procedures) of Part 3 of the withdrawal agreement and the corresponding Title 5 of Part 3 of the EEA EFTA separation agreement. For the meaning of “withdrawal agreement”, “EEA EFTA separation agreement” and “IP completion day” see section 39(1) of the European Union (Withdrawal Agreement) Act 2020. In particular, the schedule to these Regulations differs markedly from the schedule to the first exit SI in providing for procedures that are ongoing on IP completion day to continue without being subject to any substantive changes in the procurement rules applicable to them. The schedule also contains various other savings that are unconnected with those agreements.

The power contained in section 2(2) of the European Communities Act 1972 has been relied upon for amendments made by regulation 4(8)(a)(i) and (22)(a).

No business or regulatory impact assessment has been prepared in relation to these Regulations as no, or no significant, impact upon business, charities or voluntary bodies is foreseen.

Footnotes

[^f00001]: 1972 c.68 (“the 1972 Act”). The 1972 Act was repealed by section 1 of the European Union (Withdrawal) Act 2018 (c.16) (“the 2018 Act”) with effect from exit day (see section 20 of the 2018 Act), but saved, subject to modifications, until IP completion day by section 1A of that Act. Section 1A of the 2018 Act was inserted by the European Union (Withdrawal Agreement) Act 2020 (c.1) (“the 2020 Act”) and defined “IP completion day” by reference to section 39(1) to (5) of the 2020 Act. Section 2(2) was amended by the Scotland Act 1998 (c.46) (“the 1998 Act”), schedule 8, paragraph 15(3) (which was amended by section 27(4) of the Legislative and Regulatory Reform Act 2006 (c.51) (“the 2006 Act”)). Section 2(2) was also amended by section 27(1)(a) of the 2006 Act and by the European Union (Amendment) Act 2008 (c.7) (“the 2008 Act”), section 3(3) and schedule, Part 1. The functions conferred upon the Minister of the Crown under section 2(2), insofar as within devolved competence, were transferred to the Scottish Ministers by virtue of section 53 of the 1998 Act.

[^f00002]: 2018 c.16. Paragraph 11G was inserted by section 19 of the 2020 Act.

[^f00003]: Paragraph 4 of schedule 2 of the 2018 Act was amended by section 27(7)(a) of the 2020 Act.

[^f00004]: S.S.I. 2019/112.

[^f00005]: S.S.I. 2019/114.

[^f00006]: S.S.I. 2019/414.

[^f00007]: 2014 asp 12.

[^f00008]: Section 41(1)(c) was amended by S.S.I. 2015/446, regulation 1(2) and schedule 6, paragraph 2(4)(c).

[^f00009]: S.S.I. 2015/446, amended by S.S.I. 2016/47.

[^f00010]: S.S.I. 2016/49 as relevantly amended by S.S.I. 2019/173.

[^f00011]: 2018 c.16 (“the 2018 Act”). Section 4 of the 2018 Act was amended by section 25 of the European Union (Withdrawal Agreement Act 2020 (c.1).

[^f00012]: S.I. 2015/102, amended by S.I.s 2016/275 and 696; there are other amendments that are not relevant to this instrument.

[^f00013]: S.S.I. 2016/49.

[^f00014]: S.S.I. 2016/65.

[^f00015]: EUR 2014/910 as amended by S.I. 2019/89.

[^f00016]: EUDN 2015/1506 as amended by S.I. 2019/89.

[^f00017]: S.S.I. 2016/49 as last relevantly amended by S.S.I. 2019/173.

[^f00018]: 2018 c.16 (“the 2018 Act”). Section 4 of the 2018 Act was amended by section 25 of the European Union (Withdrawal Agreement Act 2020 (c.1).

[^f00019]: S.I. 2016/274, amended by S.I. 2016/696.

[^f00020]: 2006 c.46.

[^f00021]: EUR 2014/910 as amended by S.I. 2019/89.

[^f00022]: EUDN 2015/1506 as amended by S.I. 2019/89.

[^f00023]: 2018 c.22. See section 17 (place of origin of chargeable goods).

[^f00024]: S.S.I. 2016/65, amended by S.S.I. 2016/125.

[^f00025]: The definition in S.S.I. 2016/65 was amended by S.S.I. 2016/125, regulation 2(2)(a).

[^f00026]: All the substantive provisions of the Agreement were substituted by the Protocol which was approved, on behalf of the EU, by Council Decision 2014/115/EU (OJ No L 68, 7.3.2014, p.1), to which the text of the Protocol is attached (at OJ No L 68, 7.3.2014, p.2).

[^f00027]: 2018 c.16 (“the 2018 Act”). Section 4 of the 2018 Act was amended by section 25 of the European Union (Withdrawal Agreement Act 2020 (c.1).

[^f00028]: S.I. 2016/273.

[^f00029]: See the definition in Article 2(11A) which is inserted into EUR 2008/1008, on IP completion day, by S.I. 2018/1392, schedule 2, paragraph 4(6).

[^f00030]: 2006 c.46.

[^f00031]: S.S.I. 2016/145.

[^f00032]: S.S.I. 2012/88. The regulations were revoked by S.S.I. 2015/446 subject to transitional provision and saving specified in S.S.I. 2015/446, regulation 98.

[^f00033]: S.S.I. 2012/89. The Regulations were revoked by S.S.I. 2016/49 subject to transitional provision and saving specified in S.S.I. 2016/49, regulation 111.

[^f00034]: EUR 2016/7.

[^f00035]: S.S.I. 2015/446, as relevantly amended by S.S.I. 2019/112. There are other amending instruments but none is relevant.

[^f00036]: 2018 c.16. Sections 7A, 7B, 7C, 8B and 8C were inserted by the European Union (Withdrawal Agreement) Act 2020 (c.1), sections 5, 6, 26(2), 18 and 21 respectively.

[^f00037]: 2018 c.16. Sections 7A and 7B were inserted by the European Union (Withdrawal Agreement) Act 2020 (c.1), sections 5 and 6 respectively.

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