There are some small but (in the context where they apply) important changes to the PCR and UCR which came into effect at the end of May 2023, driven by the UK’s entry into the Free Trade Agreements with Australia and New Zealand.
These changes were implemented by the Public Procurement (International Trade Agreements) (Amendment) (Wales) Regulations 2023 (SI 2023/506), in respect of Welsh authorities, came into force on 26 May 2023, and the Public Procurement (International Trade Agreements) (Amendment) Regulations 2023 (SI 2023/484), in respect of other UK contracting authorities, came into force on 25 May 2023.
For those who keep a handy printed copy of the PCR and UCR, remember to annotate accordingly!
For those wanting further explanation, the Cabinet Office has now published PPN 05/23: Implementing new Free Trade Agreements - GOV.UK (www.gov.uk)
The table below shows the main substantive changes to the PCR 2015 (the many further consequential changes to give effect to these material changes are not shown). Changes in the UCR are materially identical.
Public Contracts Regulations 2015 bold)
PIN cannot be used to call for competition:
Removes the possibility of using a prior information notice (or periodic indicative notice under the UCR) as the call for competition.
Reg.2 – Definitions
After paragraph (1),—
In the definition of “procurement document”, omit “the prior information notice where it is used as a means of calling for competition,”
“procurement document” means any document produced or referred to by the contracting authority to describe or determine elements of the procurement or the procedure, including the contract notice,[...] the technical specifications, the descriptive document, proposed conditions of contract, formats for the presentation of documents by candidates and tenderers, information on generally applicable obligations and any additional documents;
Reg.48 – Prior information notices
Omit paragraphs (5), (6) and (8).
48.—(1) Contracting authorities may make known their intentions of planned procurements through the publication of a prior information notice.
(2) Such notices shall contain the information set out in section I of part B of Annex V to the Public Contracts Directive.
(3) A contracting authority wishing to publish a prior information notice shall— (a)send it for publication in accordance with regulation 51; or (b)publish it on the contracting authority’s buyer profile in accordance with regulation 52.
(4) Where the prior information notice is published by the contracting authority on its buyer profile— (a)the prior information notice shall contain the information set out in part A of Annex V to the Public Contracts Directive, and (b)the contracting authority shall send for publication, in accordance with regulation 51, a notice of the publication on its buyer profile.
(7) The period covered by the prior information notice shall be a maximum of 12 months from the date on which the notice is transmitted for publication.
Unknown contract value
Where the value of a procurement cannot be estimated, the procurement is to be treated as having been valued at the relevant threshold for that type of procurement
Reg. 6 Methods for calculating the estimated value of procurement: General rules
Insert new paragraphs (15A) and (19)
Treatment of lots
(11) Where a proposed work or a proposed provision of services may result in contracts being awarded in the form of separate lots, account shall be taken of the total estimated value of all such lots.
(12) Where a proposal for the acquisition of similar supplies may result in contracts being awarded in the form of separate lots, account shall be taken of the total estimated value of all such lots when applying regulation 5(1)(b) and (c) (read with regulation 5(2)).
(13) For the purposes of paragraphs (11) and (12), where the aggregate value of the lots is equal to or greater than the relevant threshold mentioned in regulation 5, this Part applies to the awarding of each lot.
(14) Despite paragraphs (11) to (13), contracting authorities may, subject to paragraphs (15) and (15A), award contracts for individual lots without applying the procedures provided for by this Part, but only if the estimated value, inclusive of VAT, of the lot concerned is less than—
(a) £70,778 for supplies or services, or
(b) £884,720 for works.
(15) The aggregate value of the lots awarded in reliance on paragraph (14) shall not exceed 20% of the aggregate value of all the lots into which the proposed work, the proposed acquisition of similar supplies, or the proposed provision of services, has been divided.
(15A) Where a contracting authority is unable to estimate in accordance with this regulation the value of one or more lots into which a proposed work, proposed acquisition of similar supplies or proposed provision of services has been divided, the aggregate value of the lots awarded in reliance on paragraph (14) shall not exceed 20 per cent of the aggregate value of all the lots that can be so estimated.
Other specific rules
(16) In the case of public supply or service contracts which are regular in nature or which are intended to be renewed within a given period, the calculation of the estimated contract value shall be based on either of the following:—
(a) the total actual value of the successive contracts of the same type awarded during the preceding 12 months or financial year adjusted, where possible, to take account of the changes in quantity or value which would occur in the course of the 12 months following the initial contract;
(b) the total estimated value of the successive contracts awarded during the 12 months following the first delivery, or during the financial year where that is longer than 12 months.
(17) [omitted in this article for brevity]
(18) In the case of public service contracts, the basis for calculating the estimated contract value shall, where relevant be the following:—
(a) in the case of insurance services, the premium payable and other forms of remuneration;
(b) in the case of banking and other financial services, the fees, commissions payable, interest and other forms of remuneration;
(c) in the case of design contracts, the fees, commissions payable and other forms of remuneration.
(19) In the case of public service contracts which do not indicate a total price, the basis for calculating the estimated contract value shall be the following:—
(a) in the case of fixed-term contracts where that term is less than or equal to 48 months, the total value for their full term;
(b) in the case of contracts without a fixed term or with a term greater than 48 months, the monthly value multiplied by 48.
(20) If a contracting authority is unable to estimate the value of a procurement in accordance with this regulation, the estimated value of the procurement inclusive of VAT is deemed to be equal to the relevant threshold amount in regulation 5 (threshold amounts).
Prohibit CAs and utilities from terminating contracts in a manner that circumvents obligations in the UK-Australia FTA.
Reg. 18 Principles of Procurement:
Insertion of paragraph (4) and also Schedule 3 (International trade agreements) has then been amended to include the UK-Australia and UK-New Zealand FTAs:
(1) Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.
(2) The design of the procurement shall not be made with the intention of excluding it from the scope of this Part or of artificially narrowing competition.
(3) For that purpose, competition shall be considered to be artificially narrowed where the design of the procurement is made with the intention of unduly favouring or disadvantaging certain economic operators.
(4) Contracting authorities shall not terminate public contracts in a manner that circumvents their obligations under Parts 2 and 3.
"Although the amendments arise from these particular agreements, they apply to all procurements going forward, not just those involving Australian and New Zealand suppliers." - Cabinet Office