RESTRICTED  
  
GPA/ACC/GBR/12  
 
4 September 2018  
(18-5545) Page: 1/5 
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  
COMMUNICATION  FROM NEW ZEALAND  
The following communication, dated 31 August  2018, is being circulated at the request of the 
Delegation of New Zealand.  
 
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FURTHER QUESTIONS FR OM NEW ZEALAND1 
(BASED ON UK DOCUMEN TS GPA/ACC/GBR/2, GP A/ACC/GBR/1)  
1  UNITED KINGDOM'S REP LIES TO THE CHECKLIS T OF ISSUES  (GPA/ACC/GBR/2)  
1.1  Legal Framework  
1.1.  Section 1.1: The UK response to the checklist of issues refers to s ix sets of regulations – 
those covering public contracts, utilities contracts, concession contracts and review procedures.  In 
reply to New Zealand 's initial set of questions, these six sets of regulations were described as the 
"primary domestic source " of the UK 's public procurement law. Can the UK confirm that between 
these six sets of regulations and the additional eleven other laws and regulations listed in Section 
1.2 of Doc GPA/ACC/GBR/2, these constitute the full universe of regulation governing gover nment 
procurement in the UK?  How do these six sets of regulations (which appear focused on public 
contracts, utilities contracts and concessions,) provide for the review procedures under the 
relevant EU directives?  
1.2.  Section 1.1:  The UK has indicated in its answers to New Zealand 's initial set of questions that 
"secondary legislation will be made at the appropriate time to make the necessary corrections to 
the six sets of regulations relating to public procurement. " Could the UK please provide more 
informatio n on this planned timing and the extent of "corrections " the UK plans to put in place to 
these regulations, so GPA Members will be in a position to evaluate the full suite of the UK 's 
planned regulations on government procurement.  
1.3.  Section 1.2: The question  requests an explanation of the main differences between the 
application of these other laws, regulations and policy instruments at the central and sub -central 
level and for other types of procuring entities.  While this has been answered for some of the ot her 
laws and regulations cited, this is not clear in the case of the first four laws cited in the "other laws 
– general " category; nor the "other laws – sector specific " category.  We would appreciate it if the 
UK could please provide this information.  
1.4.  Section 1.2: The paragraph on the Procurement Reform (Scotland) Act 2014 and the 
Procurement (Scotland) Regulations 2016 refer to the possibility of imposition of "community 
benefit requirements ". We would be grateful for an explanation of what kind of "commun ity benefit 
requirements " would be imposed under these laws and regulations.  
                                                
1 The initial set of questions from New Zealand on the accession of the United Kingdom in its own right 
was circulated informally.  GPA/ACC/GBR/12  
 
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  1.5.  Section 1.2: The paragraphs on the Public Services (Social Value) Act 2015 and Procurement 
Reform (Scotland) Act 2014 refer to considering economic, social and environmental wellb eing of 
an area and how contracting authorities might act to secure that improvement. Can the UK explain 
how it ensures that the effect of such considerations do not amount to offsets or have a 
discriminatory effect on international suppliers? Can the UK p rovide any specific guidance it has 
issued?  
1.6.  Section 1.2: The paragraph on section 135 of the Local Government Act 1972 refers to local 
authorities being required to make their own standing orders. How does the UK ensure that these 
orders are compliant wit h the Regulations and the provisions of the GPA?  
1.2  Scope and Coverage  
1.7.  Section 2.1: In its response to New Zealand 's initial set of questions asking about the 
mechanisms the UK has in place to ensure that procurements administered by the devolved 
administrati ons of Scotland, Wales and Northern Ireland are consistent with international 
commitments under the GPA, the UK has advised that it has in place "agreed international 
relations concordats " between the UK Government and the devolved administrations regardin g the 
implementation of international obligations.  We would be grateful for a further explanation from 
the UK as to which agencies are responsible for overseeing compliance with these requirements, 
as well as how compliance is monitored on an on -going basi s, e.g. with respect to the conduct of 
individual procurements.  
1.8.  Section 2.1: In relation to these "agreed international relations concordats ", can the UK 
explain their roles and powers, as well as any review procedures that apply to the exercise of 
powers or duties under the concordats?  
1.9.  Section 2.2: The question requests the provision of a list of all central government entities 
(ministries, departments, agencies etc.) procuring goods, services and construction services.  We 
appreciate the draft updated list  of central government entities and the document explaining this 
draft updated list circulated by the UK on 26 July.  We have a number of questions regarding the 
explanatory document, including:  
a. on item 28.7, we request further information on what has happe ned to the functions 
concerning children and families previously undertaken by the Department for Children, 
Schools and Families?  
b. item 28.10.4 advises that the functions of the Cattle Breeding Centre have been 
effectively privatised.  We would appreciate fu rther evidence of the elimination of 
government control or influence over the procurement of this entity or its private sector 
successor;  
c. on item 28.17, we request further information on which agency is responsible for the 
functions concerning universities  previously undertaken by the Department for 
Innovation, Universities and Skills, including any such functions which might have been 
devolved to individual universities;  
d. on item 28.25.7, we request further clarification as to the coverage in respect of Wal es 
of the entity "Her Majesty 's Courts and Tribunals Service " which is proposed to be added 
as a substitute for "HMCS Regions, Crown, County and Combined Courts – England and 
Wales "; 
e. on item 28.25.14, we request further clarification of which agency now has responsibility 
for these Social Security Commissioners ' functions in Wales;  
f. item 28.48 advises that the postal business functions of the Post Office have been 
reconstituted as an SOE (and listed under Annex 2), with some functions effectively 
privatis ed. We would appreciate provision of further evidence of the elimination of 
government control or influence over the procurement of these entities, as well as an 
explanation of the differences between the level of market access commitment 
encompassed in An nex 2, compared to Annex 1.  GPA/ACC/GBR/12  
 
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  1.10.   Section 2.2 : At the same time, this 26 July list indicates that it "should not be taken as an 
update to the list or as a final version " and that it is "subject to further due diligence ". We would 
appreciate advice as to when GPA  Committee Members will receive a finalised version of this 
updated list of Central Government Entities for Annex 1.  
1.11.   Section 2.2: The UK 's response to NZ 's initial set of questions explained that "central 
government contracting authorities " are a subset of  what are considered "central government 
entities ". Does Schedule 1 of the PCR 2015 and PCSR 2015 represent an exhaustive list of "central 
government contracting authorities "? How does the UK determine which entities are included in 
these Schedules?  
1.12.   Sectio n 2.4: This question asks which enterprises owned or controlled by the government 
are subject to the rules on government procurement and which other entities or categories of 
entities owned or controlled by the government engage in procurement.  In its repl y, the UK notes 
that its draft schedule of commitments provides "an indication " of the types of bodies "covered by 
the UK 's GPA offer ". We would appreciate provision of a full answer to this question.  
1.13.   Section 2.5: The second part of this question asks for a list of procuring entities not subject 
to the main procurement law and an indication of which laws and regulations these entities are 
subject to.  This does not appear to have been provided.  We would appreciate it if the UK would 
please provide this list and the requested advice on which laws and regulations these entities are 
subject to.  
1.14.   Section 2.6: Paragraph 10 refers to public works, services and supplies contracts and 
concessions awarded by a utility or group of utilities in certain circumstances as b eing a general 
exclusion from the application of UK laws relating to public procurement.  Could the UK please 
advise the specific situations in which this exclusion would arise and advise the approximate value 
of procurement covered by this exclusion?  
1.3  Non-Discrimination  
1.15.   Sections 3.2 and 3.5: These questions ask for details on any provisions in legislation that 
accord domestic goods, services and suppliers treatment more favourable than foreign goods, 
services or suppliers or that discriminate between differe nt countries of supply; as well as asking 
for information on any provisions requiring or allowing the use of offsets or measures with similar 
effect.  In response to New Zealand 's initial questions, the UK has provided information about the 
provisions under  the Utilities Contracts Regulations 2016 and the Utilities Contracts (Scotland) 
Regulations 2016 which permit contracting entities to reject a tender where the proportion of the 
products originating in third countries exceeds 50% of the total value of pro ducts constituting the 
tender.  Can the UK please confirm that these are the only such provisions in UK procurement 
legislation or regulations that contain provisions relevant to the questions above concerning more 
favourable treatment to domestic suppliers  or to different supplier countries?  
1.4  Elements Specific to Procurement Procedures  
1.16.   Section 5.10: Can the UK explain how environmental and social aspects are assessed and 
list any specific guidance it has issued? Can the UK explain the review and auditing pro cesses it 
implements to ensure criteria relating to environmental and social aspects are applied so that they 
do not create obstacles to trade?  
1.5  Provision of Information  
1.17.   Sections 6.2, 6.4 and 6.5:  These sections cover the publication requirements under the GPA 
in respect of notices of intended procurement, multi -use lists of suppliers and contract award 
notices.  In response to New Zealand 's initial set of questions about the means by which the UK 
would meet these requirements once it no longer has access to the Official Journal of the European 
Union and its electronic platform, the UK has indicated that it intends to amend references in its 
domestic legislation to incorporate a "replacement suitable platform " at some stage in the future.  
We would appreciate a dvice on the specific plans the UK has in respect of a "replacement 
platform ", including how it intends to provide for wide dissemination and ready public accessibility 
of procurement information via this platform, as well as the timetable for having this operational.  GPA/ACC/GBR/12  
 
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  1.6  Domestic Review Procedures  
1.18.   Section 7.3 (f):  This question also asks for available information on time -periods for final 
decisions arising from the domestic review process.  We did not see any information on this point in 
the UK 's response and w ould appreciate a response on this aspect.  
2  UNITED KINGDOM'S  DRAFT MARKET ACCESS OFFER (GPA/ACC/GBR/1 ) 
2.1  Annex 1  - Central Government Entities  
2.1.  Paragraph 1.1:  The UK 's draft offer indicates that the goods, services, suppliers and service 
providers of the EU and of Liechtenstein, Switzerland, Iceland, Norway and the Netherlands with 
respect to Aruba, will be treated differently to the goods, services, suppliers and service providers 
of other GPA member states.  What is the UK 's justification for this?  
2.2.  Paragraph  1.2 and footnote 1: As indicated in New Zealand 's initial set of questions, we have 
concerns about the degree of clarity and transparency afforded by the approach the UK has taken 
to scheduling its commitments under Annex 1.  For the group of GPA Members l isted in paragraph 
1.2 of Annex 1, the list of Central Government entities outlined in this Annex is intended as 
exhaustive (rather than "indicative ", as is the case for the GPA Me mbers in paragraph 1.1 of 
Annex  1). This means it is particularly important that the extent of this entity coverage is clear and 
transparent.  While the further information provided by the UK on 26 July, including the 
explanatory table referred to above, is useful to help members understand the modifications which 
have taken place in the functions and nomenclature of some of these entities, this is no substitute 
for a clear expression of the UK 's commitments in its Annex 1 schedule.  We request, therefore, 
that the UK provide a full and up -to-date list of the central government entit y coverage offered 
under para. 1.2 of Annex 1, as part of the next iteration of its proposed market access offer 
provided to GPA members.  
2.2  Annex 2  - Sub-Central Government Entities  
2.3.  Paragraphs 1 and 2 and notes to Annex 2. The UK 's answer to New Zealand 's initial questions 
on Annex 2 advises that the list provided at Annex 7 of the UK 's proposed market access offer is 
intended to "replicate the current classification of bodies in the UK applying the NUTS regulation ". 
Can the UK please confirm that the list pr ovided at Annex 7 is intended as a full and complete 
listing of all sub -central government entities on which it plans to offer commitments under Annex 
2? We would also appreciate advice on the analysis the UK itself has undertaken in support of the 
proposa ls it has made in the notes to Annex 2 which would deny the benefits of some or all of the 
UK's proposed commitments under Annex 2 to certain GPA members.  
2.4.  Paragraphs 1 and 2 and notes to Annex 2. Further to the above question, we would 
appreciate clarifica tion from the UK on the extent to which procurement by entities such as 
hospitals and schools would be undertaken by an Annex 1 entity, such as the "Department of 
Education " and the "Health Boards " and "Special Health Boards " listed in the explanatory tabl e 
provided by the UK on 26 July or would fall to entities under Annex 2, such as the regional or local 
contracting bodies or contracting bodies "governed by public law "? Could the UK please provide 
information on the relative distribution of such procureme nt expenditure between Annex 1 and 
Annex 2 entities?  
2.3  Annex 3  - Other Entities  
2.5.  Paragraph 1 and note 1:  We would appreciate a detailed explanation from the UK as to how it 
would intend to determine whether an activity covered under parag raph 1 (and listed in  
paragraph  2) was "exposed to competitive forces in the market " and thus not covered by its 
proposed commitments under Annex 3.  
2.6.  Paragraphs 1 and 2 and notes 6 (b -r), 7 and 8.  We would appreciate advice on the analysis 
the UK itself has undertaken in suppor t of the proposals it has made in the notes to Annex 3 which 
would deny the benefits of some or all of the UK 's proposed commitments under this Annex to 
certain GPA members.  GPA/ACC/GBR/12  
 
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  2.4  Annex 5  - Services  
2.7.  Annex 5: We note the services sectoral coverage in the UK 's proposed Annex 5 takes the 
form of a positive list approach and is quite limited in its coverage.  For example, there are large 
sectors contained in the Services Sectoral Classification List (Doc MTN.GNS/W/120), such as 
distribution, education, environmenta l, health -related and social services and tourism services, 
that are either barely covered or not covered at all under the UK 's offer.  What is the UK 's reason 
for adopting this narrow, positive list, approach to the coverage of its proposed services 
commit ments under the GPA?  
 
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