The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020
| Jurisdiction | Scotland |
| Citation | SSI 2020/468 |
| Year | 2020 |
2020 No. 468
Exiting The European Union
Public Procurement
The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020
Made 22th December 2020
Coming into force in accordance with regulation 1
The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 2(2) of the European Communities Act 19721, paragraphs 1(1) and (3) of Part 1 and 11G(1) and (3) of Part 1B of schedule 2 of the European Union (Withdrawal) Act 20182and all other powers enabling them to do so.
In accordance with paragraph 4(a) and (b) of schedule 2 of the European Union (Withdrawal) Act 20183, the Scottish Ministers have consulted with the Secretary of State.
In accordance with section 22 and paragraph 1(6) of schedule 7 of the European Union (Withdrawal) Act 2018, a draft of this instrument has been laid before and approved by the Scottish Parliament.
PART 1
GENERAL
Citation, commencement and extent
1.—(1) These Regulations may be cited as the Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020.
(2) Except for the provisions mentioned in paragraphs (3) and (4), these Regulations come into force on IP completion day.
(3) Regulation 2(2) comes into force immediately before IP completion day.
(4) Regulations 5, 7, and 9 come into force 12 months after IP completion day.
(5) Regulation 13 extends to Scotland only.
Transitional and savings provisions and revocation
2.—(1) The Schedule has effect making—
(a)
(a) provision in relation to procurements that are ongoing on IP completion day, including provision—
(i) disapplying in relation to such procurements certain amendments made or to be made (whether by these Regulations or otherwise) in relation to public procurement,
(ii) modifying references in certain regulations that apply to such procurements,
(b)
(b) other savings in relation to certain provisions of these Regulations.
(2) The following are revoked—
(a)
(a) the Public Procurement etc. (Scotland) (Amendment) (EU Exit) Regulations 20194,
(b)
(b) the Public Procurement etc. (Scotland) (Amendment) (EU Exit) Amendment Regulations 20195, and
(c)
(c) the Public Procurement etc. (Scotland) (Amendment) (EU Exit) Amendment (No. 2) Regulations 20196.
PART 2
AMENDMENT OF PRIMARY LEGISLATION
The Procurement Reform (Scotland) Act 2014
3.—(1) The Procurement Reform (Scotland) Act 20147is amended as follows.
(2) For section 8(4) (general duties), substitute—
“4. A relevant economic operator is an economic operator who is a national of, or is established in, the United Kingdom or Gibraltar.”.
(3) In each of sections 8(5) (general duties), 11(1) (supported businesses), 27(1) (exclusion of economic operators on grounds of criminal activity), 28(1) (selection of tenderers), 32(1) (giving reasons to unsuccessful participants), 33(1) (request for further information) and 37(1) (actionable duties) for “an EU-regulated procurement” substitute “a higher value regulated procurement”.
(4) In section 30(1) (technical specifications), for “EU-regulated procurements” substitute “higher value regulated procurements”.
(5) For section 37(3) (actionable duties), substitute—
“3. A relevant person is an economic operator who is a national of, or is established in, the United Kingdom or Gibraltar.”.
(6) In section 41 (the Directive, Public Contracts Regulations and EU-regulated procurements)—
(a)
(a) for the heading substitute “Public Contracts Regulations and Higher Value Regulated Procurements”,
(b)
(b) omit subsections (1)(a) and (2)(a),
(c)
(c) in subsection (1)(c)8for “an “EU-regulated procurement”” substitute “a “higher value regulated procurement””.
(7) In section 42 (general interpretation)—
(a)
(a) for the meaning of “public contract” substitute “means a contract for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as its object the execution of works, the supply of products or the provision of services”,
(b)
(b) for the meaning of “public works contract” substitute—
“means a public contract having as its object one of the following—
(a) the execution or the design and execution of works related to one of the activities within the meaning of schedule 2 of the Public Contracts Regulations,
(b) the execution or the design and execution of a work,
(c) the realisation, by whatever means, of a work corresponding to the requirements specified by the contracting authority exercising a decisive influence on the type or design of the work,
(except in a subsidised public works contract),”,
(c)
(c) at the end of subsection (1) insert—
““work” means the outcome of building or civil engineering works taken as a whole which is sufficient in itself to fulfil an economic or technical function.”.
PART 3
AMENDMENT OF SECONDARY LEGISLATION
CHAPTER 1
THE PUBLIC CONTRACTS (SCOTLAND) REGULATIONS 2015
Amendments commenced on IP completion day
4.—(1) The Public Contracts (Scotland) Regulations 20159are amended as follows.
(2) In regulation 2 (interpretation)—
(a)
(a) in paragraph (1)—
(i) omit the definition of the “Commission”,
(ii) in the definition of “common technical specification”, after “standardisation” insert “as it has effect in EU law”,
(iii) for the meaning of “contracting entity” substitute—
“means a utility within the meaning of regulation 4(1) of the Utilities Contracts (Scotland) Regulations 201610”,
(iv) after the definition of “contracting entity” insert—
““covered by regulation 3(2)”, in relation to an element, a part of a contract, or procurement, means that regulation 3(2)—
(a) applies to that element, part or procurement, or
(b) would do so if Part 2 applied,”,
(v) omit the definition of “ESPD”,
(vi) in the definition of “GPA”, after “amended” insert “before IP completion day”,
(vii) in the definition of “innovation”, omit “the Europe 2020 strategy for smart,”,
(viii) after the definition of “public works contract” insert—
““the Retained Treaties” means anything which is retained EU law by virtue of section 4 of the European Union (Withdrawal) Act 201811because of the effect which the Treaty on European Union or TFEU had immediately before IP completion day in giving rise to any of the rights, powers, liabilities, obligations, restrictions, remedies and procedures mentioned in that section,”,
(ix) after the definition of “selection criteria” insert—
““SPD” means the Single Procurement Document referred to in regulation 60(1),”,
(x) after the definition of “TFEU” insert—
““the UK e-notification service” has the meaning given by regulation 52(5), and references (in whatever terms) to the submission of notices to that service are to be construed in accordance with regulation 52(6),”,
(xi) omit the definition of “Utilities Directive”,
(b)
(b) omit paragraphs (2) and (3).
(3) For regulation 3(2), (subject matter and application of these regulations) substitute—
“2. This Part—
(a) does not oblige any contracting authority to supply information the disclosure of which it considers contrary to the essential interests of the security of the United Kingdom,
(b) does not preclude any contracting authority from taking such measures as it considers necessary for the protection of the essential interests of the security of the United Kingdom and which are connected with the production of or trade in arms, munitions and war material, provided that such measures do not adversely affect the conditions of competition regarding products which are not intended for specifically military purposes.
3. The arms, munitions and war material to which paragraph (2)(b) applies are those included in the 1958 List.
4. Any measures which, if they had been taken immediately before IP completion day, would have been covered by Article 346 of TFEU shall be regarded as measures covered by paragraph (2)(b).
5. In this regulation, “the 1958 List” means the list of arms, munitions and war material adopted by the Council of the European Economic Community in its Decision 255/58 of 15 April 1958 as that list is to be treated for the purpose of Part 2 of the Public Contracts Regulations 201512.”.
(4) In regulation 4 (mixed procurement)—
(a)
(a) in paragraph (1), for “Article 346 of the TFEU” substitute “regulation 3(2)”,
(b)
(b) in paragraph (2)—
(i) for “Utilities Directive” substitute “Utilities Contracts (Scotland) Regulations 201613”,
(ii) for “Art 5 and 6 of the Utilities Directive” substitute “regulations 5 and 6 of those Regulations”.
(5) In regulation 5 (thresholds)—
(a)
(a) in paragraph (1)—
(i) in sub-paragraph (a), for “the amount specified in Article 4(a) of the Directive” substitute “£4,733,252”,
(ii) in sub-paragraph (b), for “the amount specified in Article 4(b) of the Directive” substitute “£122,976”,
(iii) in sub-paragraph (c), for “the amount specified in Article 4(c) of the Directive” substitute “£189,330”,
(iv) in sub-paragraph (d), for “the amount specified in Article 4(d) of the Directive” substitute “£663,540”,
(b)
(b) in paragraph (3)(a)(i), for “80,000 euros” substitute “£70,778”,
(c)
(c) in paragraph (3)(a)(ii), for “1 million euros” substitute “£884,720”,
(d)
(d) omit paragraph (5).
(6) After regulation 5 insert—
“Review and amendment of certain thresholds
5A. (1) Every two years the Scottish Ministers must review the thresholds specified in regulation 5(1)(a), (b) and (c) (“the reviewable thresholds”) to verify whether they correspond with the thresholds established for those purposes in the GPA.
(2) The Scottish Ministers must do so by calculating the sterling value of each of the reviewable thresholds on the basis of the average daily value of sterling in terms of the special drawing rights mentioned in the...
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