Regulation 4 Transitional and saving provision in relation to the amendments made by regulation 3

(1)

Subject to the other provisions of this regulation, the amendments made by regulation 3 apply prospectively even in relation to procurements which had commenced before exit day.

(2)

But, subject to the following provisions of this regulation, an amendment made by regulation 3 does not apply to the extent that the provision amended refers or relates (directly or indirectly) to something which in fact occurred before exit day.

(3)

Accordingly, for example, where, before exit day, a contract notice was published in the Official Journal after being sent for such publication in accordance with unamended regulations 17(2) and 48 of the 2011 Regulations (and the unamended definition of “contract notice” in regulation 3(1) of those Regulations), but exit day occurred before the sending of a contract award notice to the Official Journal in accordance with unamended regulations 32 and 48 of those Regulations in relation to that procurement—

(a)

the contract award notice is, on or after exit day, to be submitted for publication on the UK e-notification service in accordance with amended regulations 32 and 48 of the 2011 Regulations; but

(b)

the information to be included in that notice by virtue of amended regulation 32(1)(a) of the 2011 Regulations includes the date of the publication of the contract notice in the Official Journal because that publication occurred before exit day and, accordingly, the modification made by paragraph 5(b) of amended Schedule A1 (introduced by amended regulation 32(1)) is to be disregarded in relation to that publication.

(4)

The amendments made by regulation 3 to the following provisions of the 2011 Regulations do not affect any procurement commenced before exit day—

(a)

in regulation 3(1), the definitions of “contractor”, “national of a member State”, “services provider” and “supplier”;

(b)

regulation 7;

(c)

regulation 16(1)(e);

(d)

regulations 23 to 27;

(e)

regulation 29;

(f)

regulation 39;

(g)

regulation 43(1)(e);

(h)

Schedule 3.

(5)

The provisions saved by paragraph (4) are to be construed and have prospective effect, on and after exit day, as if the United Kingdom were still a member State.

Interpretation of this regulation

(6)

For the purposes of this regulation, a procurement has been commenced before exit day if, before exit day—

(a)

a notice has been sent to the Official Journal in accordance with the 2011 Regulations in order to invite requests to be selected to tender for, to negotiate, or to participate in a competitive dialogue, in respect of a proposed contract or framework agreement;

(b)

the contracting authority has had published any form of advertisement seeking offers or expressions of interest in a proposed contract or framework agreement; or

(c)

the contracting authority has contacted any economic operator in order to—

(i)

seek expressions of interest or offers in respect of a proposed contract or framework agreement; or

(ii)

respond to an unsolicited expression of interest or offer received from that economic operator in relation to a proposed contract or framework agreement.

(7)

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

(8)

Accordingly, for example, if a contract notice in relation to a proposed framework agreement has, before exit day, been sent as described in paragraph (6)(a), paragraph (4) 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 20(7) to (9) of the 2011 Regulations had itself been commenced before exit day.

(9)

Procedures taken for the purpose of modifying a contract or framework agreement are not to be regarded, for the purposes of paragraph (7), as stemming from the commencement of the procurement from which the award of that contract or framework agreement had itself stemmed.

(10)

In this regulation—

“the 2011 Regulations” means the Defence and Security Public Contracts Regulations 2011;
“amended”, in relation to a provision, means that provision as amended, substituted or inserted by regulation 3; and
“unamended”, in relation to a provision, means that provision in the form in which it existed immediately before it was amended or substituted by regulation 3.

(11)

In this regulation, “contracting authority”, “contract notice”, “framework agreement” and “Official Journal” have the same meaning as in the unamended 2011 Regulations.