Citation, commencement and extent

1.—(1) These Regulations may be cited as the Public Procurement (Agreement on Government Procurement) (Thresholds etc.) (Amendment) (Scotland) Regulations 2021.

(2) These Regulations come into force on 1 January 2022.

(3) These Regulations extend to Scotland only.

Interpretation

2.  In these Regulations—

“the 2015 Regulations” means the Public Contracts (Scotland) Regulations 2015;

“the Concession Regulations” means the Concession Contracts (Scotland) Regulations 2016; and

“the Utilities Regulations” means the Utilities Contracts (Scotland) Regulations 2016.

Amendment of the Public Contracts (Scotland) Regulations 2015

3.—(1) The 2015 Regulations( 5) are amended as follows.

(2) In regulation 5 (thresholds), in paragraph (1)—

(a) for “not including value added tax” substitute “inclusive of value added tax, where appropriate”,

(b) in sub-paragraph (a), for “£4,733,252” substitute “£5,336,937”,

(c) in sub-paragraph (b), for “£122,976” substitute “£138,760”,

(d) in sub-paragraph (c), for “£189,330” substitute “£213,477”.

(3) In regulation 6 (methods for calculating the estimated value) in paragraph (1), for “not including value added tax” substitute “inclusive of value added tax, where appropriate”.

(4) In regulation 14 (specific situations: contracts subsidised by a contracting authority) in paragraph (1)—

(a) in sub-paragraph (a), for “net of value added tax” substitute “inclusive of value added tax, where appropriate”,

(b) in sub-paragraph (b), for “net of value added tax” substitute “inclusive of value added tax, where appropriate”.

(5) In Part 2 of Schedule 2 omit “Regional Development Scotland”.

Amendment of the Utilities Contracts (Scotland) Regulations 2016

4.—(1) The Utilities Regulations( 6) are amended as follows.

(2) In regulation 15 (thresholds), in paragraph (1)—

(a) for “not including VAT” substitute “inclusive of VAT, where appropriate”,

(b) in sub-paragraph (a), for “£378,660” substitute “£462,955”,

(c) in sub-paragraph (b), for “£4,733,252” substitute “£5,336,937”.

(3) In regulation 16 (methods for calculating the estimated value), in paragraph (1) for “not including VAT” substitute “inclusive of VAT, where appropriate”.

(4) In regulation 91 (scope of chapter), in heads (a) and (b) in each place it occurs, for “net of VAT” substitute “inclusive of VAT, where appropriate”.

Amendment of the Concession Contracts (Scotland) Regulations 2016

5.  In regulation 8 (thresholds and methods for calculating the estimated value of the concession contract) of the Concession Regulations( 7)—

(a) in paragraph (1)—

(i) for “£4,733,252” substitute “£5,336,937”,

(ii) for “not including value added tax” substitute “inclusive of value added tax, where appropriate”,

(b) in paragraph (3) for “net of value added tax” substitute “inclusive of value added tax, where appropriate”.

Transitional provision and saving where public contract procurement procedures commenced before 1 January 2022

6.—(1) In this Regulation—

(a) “the Procurement Regulations” means the following and, in relation to any procedure, means whichever of the following applies to that procedure—

(i) the 2015 Regulations,

(ii) the Utilities Regulations,

(iii) the Concession Regulations,

(b) the following have the same meaning as in the Procurement Regulations—

(i) concession contract,

(ii) contract,

(iii) contracting authority,

(iv) design contest

(v) dynamic purchasing system

(vi) economic operator,

(vii) framework agreement

(viii) public contract,

(ix) utility,

(c) “procedure” means all processes undertaken by the contracting authority in accordance with the Procurement Regulations, with the intention of awarding a contract, concession contract or public contract but does not include procedures taken for the purposes of modifying a contract, concession contract or public contract.

(2) Nothing in these Regulations affects any procedure or design contest that commenced under the Procurement Regulations before 1 January 2022.

(3) For that purpose, a procedure or design contest has been commenced before 1 January 2022 if, before that date—

(a) a notice has been sent to the Official Journal or submitted for publication on the UK e-notification service in accordance with the 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, concession contract, public contract, framework agreement or dynamic purchasing system, or

(ii) advertise an intention to carry out 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, concession contract, public contract, framework agreement or dynamic purchasing system, or

(c) the contracting authority or utility has contacted any economic operator in order to—

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

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend the thresholds that apply in the field of public procurement that are specified in the Public Contracts (Scotland) Regulations 2015 ( S.S.I. 2015/446) (“the 2015 Regulations”), the Utilities Contracts (Scotland) Regulations 2016 ( S.S.I. 2016/49) and the Concession Contracts (Scotland) Regulations 2016 ( S.S.I. 2016/65) respectively in accordance with the obligations of the United Kingdom under the Agreement on Government Procurement (“the GPA”) and as required by each Regulation which is amended. The Regulations change the calculation of the estimated value of a procurement based on the total amount payable, from a calculation exclusive of value added tax to one inclusive of value added tax where applicable, in order to fully comply with the GPA. The Regulations also remove “Regional Development Scotland” from Part 2 of Schedule 2 of the 2015 Regulations.