RESTRICTED  
  
GPA/ACC/GBR/15  
 
13 September 2018  
(18-5652) Page: 1/4 
Committee on Government Procurement  Original: English  
 
ACCESSION OF THE UNI TED KINGDOM TO THE A GREEMENT ON GOVERNME NT 
PROCUREMENT IN ITS O WN RIGHT  
The following document from the United Kingdom, dated 12 September 2018, is being circulated 
at the request of the Delegation of the European Union.  
 
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REPLIES OF THE UNITE D KINGDOM TO COMMENT S AND QUESTIONS FROM  THE 
SEPARATE CUSTOMS TER RITORY OF TAIWAN, PE NGHU, KINMEN AND MAT SU 
(GPA/ACC/GBR/11) ON THE UNITED KINGDOM'S  MARKET ACCESS OFFER  
OF (GPA/ACC/GBR/1/RE V.1) AND REPLIES TO THE CHECKL IST OF  
ISSUES (GPA/ACC/GBR/ 2) 
UK Formal Responses to Questions from Separate Customs Territory of Taiwan, Penghu, 
Kinmen and Matsu  
We thank the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu  for its interest in 
the UK 's accession to the GP A and its comments and questions. The UK has prepared the following 
answers to these questions and is looking forward to further constructive dialogue with the 
Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu  and all GPA Parties.  
 
General Comments  
 
1. We note that the indicative lists of Annexes 1, 2 and 3 appear to be outdated. In 
this regard, we would like to express our concern regarding securing for our companies 
the same level of market access as the United Kingdom's current levels. The Unit ed 
Kingdom has been asked to prepare updated indicative lists reflecting any changes.  
The UK 's aim is to provide continuity in its trading relationships as we leave the EU. This means for 
the GPA that we are replicating our current commitments as set out i n the EU schedule of 
commitments. The footnote included in respect of the list of central government entities in Annex 
1 provides reassurance that coverage is not being reduced, and the indicative list of entities 
circulated to all Parties informally gives  an example of the kinds of bodies covered by the footnote.  
 
We have heard the concerns of some Parties about the need to understand the current state of 
play of government in the UK and to have this reflected in the schedules.  Whilst we are unable to 
reflect up to date lists in the schedules on accession, we have informally provided the indicative 
list of entities requested above and transparency on how we have arrived at that list.  This 
approach is intended to assist P arties to understand which entities a re covered and in explaining 
coverage to their stakeholders, whilst still respecting the overall approach taken with the UK 's 
market access offer (GPA/ACC/GBR/1/R ev.1). The UK intends to updat e the lists of entities in its 
Annexes shortly after it becomes an independent Party, and will be engaging GPA P arties during 
the accession process to explain what changes would be made to these lists.  
 
Annex 1 – Central Government Entities  
 
2. Regarding the Updated List of Central Government Entities for Annex 1 of the UK 
GPA Schedules (July 2018) provided by the United Kingdom, we have found that in many 
cases, certain subordinated entities, such as executive agencies, are not listed. We 
would like to confirm with the United Kingdom the reason for this, and would ask the GPA/ACC/GBR/15  
 
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  following question in this regard, using the Department for Business, Energy & 
Industrial Strategy (BEIS) as an example. The United Kingdom lists the Intellectual 
Property Offic e and the Met Office under BEIS, both of which are executive agencies. 
However, the Companies House, the Insolvency Service, and the UK Space Agency are 
executive agencies sponsored by BEIS, yet they are not listed in the Updated List of 
Central Government  Entities for Annex 1 of the UK GPA Schedules (July 2018). Please 
explain why these three executive agencies are not listed. Are these three executive 
agencies otherwise included under the scope of coverage of the United Kingdom 's 
market access offer?  
The United Kingdom 's Mission to the WTO has provided additional information to delegates on this 
subject and will provide further supplementary information shortly in order to assist Parties with 
analysis of the offer.  
 
3. Note 3 of Annex 1 of the United Kingdom 's market access offer states that 
"'Contracting authorities of the United Kingdom' covers also any subordinated entity of 
any contracting authority of the United Kingdom provided it does not have separate 
legal personality." However, we understand that the  Maritime and Coastguard Agency is 
listed as a subordinated entity precisely because it has no separate legal personality.  
a. We would like to confirm the underlying rule for the listing of entities without 
separate legal personality in the Updated List of Ce ntral Government Entities 
for Annex 1 of the UK GPA Schedules (July 2018). Should all entities without 
separate legal personality from listed entities be specifically listed in this 
updated list?  
Subordinate entities which do not have separate legal person ality to a body listed in 
Annex  1 are covered for all Parties. This is true whether or not the subordinate entity is 
separately listed in Annex 1. The United Kingdom 's Mission to the WTO has provided 
additional information to delegates on this subject and will provide further 
supplementary information shortly in order to assist Parties with analysis of the offer.  
 
b. How does one determine whether a subordinated entity has separate legal 
personality ? Is there a legal standard for such a determination ? Please p rovide 
any relevant legal regulations or sources.  
There are a range of different types of central government public bodies in the UK.  
Please see the response to question 2.1 in the UK 's response to the Checklist of Issues 
(GPA/ACC/GBR/2) for details of the  main types of bodies.  A body will have separate legal 
personality where it is legally distinct from the Crown.  
 
c. Could the United Kingdom provide examples and explanations of what entities 
have separate legal personalities and which do not? Please provide examples 
and explanations with regards to all types of government entities.  
Ministerial departments, non -ministerial departments, non -departmental public bodies 
with executive functions and statutory office holders all have separate legal personality.  
Executive agencies and non -departmental public bodies with advisory functions and 
offices of departments do not have separate legal personality from their sponsoring 
department and are part of the Crown.  
 
Examples are as follows:  
 
• The Cabinet Office is a minis terial department.  
• The Competition and Markets Authority is a non -ministerial department.  
• Natural England is a non -departmental public body with executive functions 
sponsored by the Department for Environment, Food & Rural Affairs.  
• The Official Solicitor a nd Public Trustee are statutory office holders.  
• The Intellectual Property Office is an executive agency of the Department for 
Business, Energy and Industrial Strategy.  
• The Law Commission is a non -departmental public body with advisory functions.  
• The Office  of the Prime minister is an office of a department.  GPA/ACC/GBR/15  
 
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  4. Due to Brexit, the United Kingdom will have to itself undertake certain 
governmental functions which were previously performed by the European Union. For 
instance, we understand that the United Kingdom i ntends to establish a Trade Remedy 
Authority (TRA), which presumably would operate under the Department of 
International Trade. Will the TRA also be covered by the United Kingdom 's GPA market 
access commitments? Similarly, will other future organizational adjustments or newly 
established entities due to Brexit also be covered by the United Kingdom 's GPA market 
access commitments?  
Should a new body be created that satisfies the conditions for coverage as set out in the UK 's 
marke t access offer (GPA/ACC/GBR/1/Rev .1), this would then be covered by the UK 's GPA 
commitments.  It would not be appropriate for the UK to pre -empt the creation of new bodies in its 
market access offer.  
 
Annex 2 – Sub-Central Government Entities  
5. The United Kingdom stated th at the Office of Rail and Road (ORR) is covered under 
Annex 2 as a body governed by public law. If the ORR is covered under Annex 2, then 
why is the ORR not listed in the Updated Indicative List of Sub -Central Government 
Entities for Annex 2 of the UK GPA Schedules (July 2018)? Are there any other entities 
which are covered under Annex 2 but are not listed in the Updated Indicative List of 
Sub-Central Government Entities for Annex 2 of the UK GPA Schedules (July 2018)? We 
note that the Competition and Marke ts Authority (CMA), a non -ministerial department, is 
listed under BEIS in the Updated List of Central Government Entities for Annex 1 of the 
UK GPA Schedule (July 2018). The ORR is also a non -ministerial department of the 
Department for Transport. Why do t he ORR and the CMA fall under different annexes, 
when they are both non -ministerial departments?  
The United Kingdom 's Mission to the WTO has provided additional information to delegates on this 
subject and will provide further supplementary informat ion shortly in order to assist P arties with 
analysis of the offer.  
 
6. Paragraph 1.c. of Annex 2 of the United Kingdom 's market access offer refers to 
"administrative units falling under Territorial Unit 3 . . . and smaller administrative 
units. " Which level of t he United Kingdom 's local government do such "smaller 
administrative units " refer to ? 
The reference to "smaller administrative units " in Annex 2 of the UK 's market access offer 
(GPA/ACC/GBR/1/R ev.1) refers to local administrative units, for example elector al wards/divisions.  
 
Annex 3 – Other Entities  
7. Please explain the reservations set forth in Notes 1., 2.b., 4. and 5. of Annex 3.  
Note 1.  
 
Procurement is not covered in pursuit of the listed activities in Annex 3 when the market 
concerned is exposed to comp etitive forces.  Exposure to competitive forces is determined, 
where appropriate circumstances occurred, by looking at how the market operates in 
particular utility sectors. The relevant criteria to be considered are whether access to the 
market is free bec ause there is actual competition and because there are no legal barriers to 
market entry. This approach stems from the exemption mechanism set out in the Utilities 
Directive 2014 (2014/25/EU) and the Utilities Contracts Regulations 2016, which transpose 
the Utilities Directive 2014. Previously, a similar mechanism was provided in the Utilities 
Directive 2004 (2004/17/EC) and the Utilities Contracts Regulations 2006 which 
implemented that Directive. Under the Utilities Directive 2004, two exemption decisions  
affecting parts of the UK in sectors covered by the GPA were made. These concerned 
electricity generation in England, Scotland and Wales (see European Commission decision 
2006/211/EC of 8  March 2006) and the supply of electricity and gas in England, Scotland 
and Wales (see European Commission Decision 2007/141/EC 26 February 2007). The 
remainder of the utilities sectors covered in Annex 3 remain covered.  
 GPA/ACC/GBR/15  
 
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  Note 2. b.  
 
Procurement is covered in respect of the pursuit of activities listed activities in A nnex 3, but 
not for purposes other than the pursuit of activities which are not listed activities and not for 
the pursuit of activities outside of the UK.  
 
Note 4.  
 
Procurement by procuring entities covered by Annex 3 is not covered for the provision of 
supplies or services by an entity to an affiliated undertaking or by a joint venture, formed of 
procuring entities for the purpose of carrying out activities covered by Annex 3, to an 
undertaking which is affiliated with one of these procuring entities, wher e the undertaking 
has derived at least  80 per cent of its average turnover for the preceding three years from 
the provision of such services or supplies to undertakings with which it is affiliated.  
Appropriate rules protect against distortions of competiti on, in particular maximum limits 
within which undertakings may obtain a part of their turnover from the market and above 
which they would lose the possibility of being awarded contracts without open competition.  
 
Note 5 . 
 
Procurement by procuring entities  covered by Annex 3 is not covered where the 
procurement is by a joint venture, formed exclusively by a number of procuring entities for 
the purposes of carrying out activities covered by Annex 3, to one of these procuring entities 
or by a procuring entity  to such a joint venture of which it forms part, subject to certain 
caveats.  Appropriate rules protect against distortions of competition, in particular maximum 
limits within which undertakings may obtain a part of their turnover from the market and 
above which they would lose the possibility of being awarded contracts without open 
competition.  
 
8. We note that reciprocal access to the procurement mentioned in Note 6.h. of 
Annex 3 has not been provided to suppliers of the Separate Customs Territory of Taiwan, 
Penghu, Kinmen and Matsu. Please delete the Separate Customs Territory of Taiwan, 
Penghu, Kinmen and Matsu from Note 6.h.  
The UK 's aim is to provide continuity in its trading relationships as we leave the EU. This means for 
the GPA that we are replicating our current commitments as set out in the EU schedule of 
commitments. This does mean that we have kept the exclusion referred to in the question.  This 
completely replicates the current offer the UK has under the EU schedules, e nsuring no Party is 
worse off . 
 
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