RESTRICTED  
  
GPA/ACC/GBR/17  
 
5 October 2018  
(18-6171) 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 5 October 2018, is being circulated at the 
request of the Delegation of the European Union.  
 
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REPLIES FROM THE UNI TED KI NGDOM TO THE COMMENTS  FROM THE UNITED STA TES 
(GPA/ACC/GBR/13) ON THE REPLIES OF THE U NITED KINGDOM TO COM MENTS AND 
QUESTIONS FROM THE U NITED STATES (GPA/AC C/GBR/10)  
Annex 1 – Central Government Entities  
 
1. In its response to the req uest to provide an updated list of central government 
contracting authorities (Question 1), the United Kingdom states that it is replicating its 
current commitments as set out in the EU schedule of commitments in order to provide 
continuity in its trading relationships as the United Kingdom leaves the EU. Please explain 
how updating the list of contracting authorities might impact continuity. Is there an 
expectation that an updated list of contracting authorities may affect the level of mutually 
agreed cove rage?  
Using the same list in the UK schedules (GPA/ACC/GBR/16) as the one currently contained in the 
EU schedule provides continuity with respect to coverage prior to the UK leaving the EU, with the 
footnote to the Annex 1 list providing continuity of cove rage with regard to entities to which functions 
have transferred from the listed entities. The UK will use the Article XIX process once the UK has 
accede d to the GPA as an independent P arty and the UK 's schedules apply, to update the list of 
central govern ment entities in Annex 1.  
 
The UK anticipates that updating the list in a final form on which full assurance can be provided may 
take some time to complete and for P arties to review. Given the time pressure for the UK to accede 
to the GPA in its own right,  including the scheduling of GPA Committee meetings  and the time 
required for GPA P arties ' and the UK 's domestic processes, the UK does not consider that an agreed 
updated list can be achieved in time. This could impact on continuity because it could delay  the UK 's 
accession, with the associated risk of the UK falling out of the GPA. The UK does not expect that the 
updated list of contracting authorities will reduce the level of mutually agreed coverage.  
 
2. In its response to the request to explain how Note 1 .b. is applied (Question 3), the 
United Kingdom notes that Note 1.b. excludes procurement by procuring entities covered 
under Annex 1 of good or service components of procurement which are not themselves 
covered by the GPA in regard of suppliers and servic es providers from the United States 
and Canada until such time as the United Kingdom has accepted that the Parties concerned 
provide satisfactory reciprocal access for the United Kingdom goods, suppliers, services 
and service providers to their own procure ment markets. As the United States is 
interested in continuity of current market access in the United Kingdom, please respond 
to the following comments:  
a. Please identify how Note 1.b. is applied in procurement by the United Kingdom 
currently.  GPA/ACC/GBR/17  
 
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  This Note is a pplied in the UK insofar as UK procuring entities are not required to open 
procurements covered by Note 1.b. to suppliers and services providers from the United 
States and Canada.  UK procuring entities would indicate in the contract notice advertising 
the procurement that it is not covered by the GPA and would be entitled not to consider 
expressions of interest or bids from suppliers or services providers from the United States 
and Canada.  
 
b. This clause is based on the United Kingdom receiving reciprocal acc ess in the 
United States. Can the UK identify what measures the United States has in place 
that have led to the United Kingdom's decision to retain this note?  
The UK is replicating its current market access offer: it is not making individual decisions 
about retaining (or not retaining) particular notes as part of its accession process. 
Nevertheless, we consider note 1.b. remains relevant as it ensures where the United States 
and Canada have not offered the UK equivalent access, the UK does not offer such ac cess 
to suppliers and services providers from the United States and Canada.  
 
c. Please provide examples of procurements that will not be covered with respect 
to the United States as a result of this note.  
A hypothetical example of a procurement that is not co vered with respect to suppliers and 
services providers from the United States and Canada as a result of this Note is a 
procurement for equipment provided as a component of a procurement for education 
services. Procurement for education services is not cove red by the GPA and Note 1.b. 
clarifies that procurement of any good or service component of that non -covered 
procurement (such as equipment) is also not covered for suppliers and services providers 
from the United States and Canada. UK procuring entities w ould indicate in the contract 
notice advertising the procurement that it is not covered by the GPA and would be entitled 
not to consider expressions of interest or bids from suppliers and services providers from  
the United States and Canada.  
 
3. Can the Unite d Kingdom confirm that Note 3 of Annex 1 applies equally to paragraph 
1 and paragraph 2 under the section titled "The Central Government Contracting 
Authorities of the United Kingdom"? If this is true, can the United Kingdom commit to 
including in paragrap h 2 the language "contracting authorities of the United Kingdom", 
which is the term referenced in Note 3?  
We confirm that N ote 3 of Annex 1 applies equally to paragraph 1 and paragraph 2 under the section 
titled "The Central Government Contracting Authorit ies of the United Kingdom". The UK will use the 
Article XIX process once the UK has acceded to the GPA as an independent Party and the UK 's 
schedules apply, to include in paragraph 2 language to clarify this.  
 
4. In its response to the request to clarify the list of subordinate entities and whether 
they have a "separate legal personality" (Question 5), the United Kingdom notes that its 
Annex 1 list does include some entities that have a separate legal personality f rom a body 
that is also listed in the Annex 1 list, such as the NHS Trusts.  
a. Please explain how the United Kingdom determined which subordinate entities 
with a separate legal personality would be listed under Annex 1. Please identify 
the subordinate entiti es with separate legal personality that were not included 
on the list.  
The UK consulted with central government entities and listed those subordinate entities 
with separate legal personality which were provided by them at the time. Subordinate 
entities with separate legal personality not included on the list are not covered by the UK 's 
market access offer.  
 GPA/ACC/GBR/17  
 
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  b. Please explain how the United Kingdom determined to list some of the 
subordinate entities that do not have a separate legal personality. Please provi de 
a list of these entities that are subject to Note 3.  
The UK consulted with central government entities and listed those subordinate entities 
without separate legal personality which were provided by them at the time. Subordinate 
entities without separat e legal personality are covered by the UK 's market access offer 
irrespective of whether or not they are listed.  
 
Annex 3 – Other Entities  
 
5. In its response to the request to clarify the impact of European Community 
exemption decisions, 2006/211/EC of 8 Marc h 2006 and 2007/141/EC of 26 February 
2007, with regard to entities subject to the requirements of EC utility directives, on its 
Annex 3 market access offer (Question 12), the United Kingdom notes it has not identified 
any entities covered by Annex 3 which  are electricity generation entities or entities in the 
supply of electricity and gas as these decisions have exempted these sectors under the 
utilities directive (2004/17/EC). As the United States is interested in continuity of current 
market access in th e United Kingdom, please respond to the following comments:  
a. Please confirm that there are no entities in the supply of electricity and gas that 
engage in procurements covered by the GPA.  
The two exemption decisions referred to concern electricity generatio n in England, 
Scotland and Wales and the supply of electricity and gas in England, Scotland and Wales. 
As a result of these exemption decisions, there are no entities in the supply of electricity 
and gas in England, Scotland and Wales whose procurements ar e covered by the GPA. The 
remainder of the utilities sectors covered in Annex 3 remain covered.  
 
b. Please explain the significance, in the UK's indicative list for Annex 3, of "A 
person licensed under section 6 of the Electricity Act 1989." Are there any 
persons or entities that are so licensed that would still be covered by the GPA?  
There are entities that are licensed under Section 6 of the Electricity Act 1989 in the field 
of energy distribution and transmission that may be covered under the GPA if these a re 
public undertakings.  
 
6. We take note that the United Kingdom is currently considering its approach to the 
mechanism for determining whether entities are exposed to competitive forces once the 
UK leaves the EU. However, it is difficult to accept Note 1 to Annex 3 without a better 
understanding of how this note will be applied. What commitments will the United 
Kingdom provide that future U.K. determinations of competitive force will be fully subject 
to Article XIX (Modifications a nd Rectifications to Coverag e)? 
We confirm that any future UK determinations of competitive forces w ill be fully subject to 
Article  XIX. 
 
Annex 5 – Services  
 
7. In its response to the request to provide information on buy local requirements or 
buy local legal restrictions on services no t covered by the GPA (Question 14), the United 
Kingdom noted that it does not maintain these policies. Please confirm that the relevant 
UK laws and regulations on government procurement require national treatment 
regardless of whether procurement s are subj ect to EC directives.  
UK laws and regulating in the field of public procurement require national treatment only for 
procurements which are subject to the EU Directives, which includes all GPA covered procurement. 
The UK has no buy local policies for servic es not covered by the GPA.  
 GPA/ACC/GBR/17  
 
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  Annex 6 – Construction Services  
 
8. In its response to the request to clarify the difference between CPC 51 and work 
concessions contracts (Question 15), the United Kingdom noted that services set out in 
CPC 51 would be covered for  all GPA Parties (subject to the note to Annex 6) and that 
work concessions contracts would only be covered for the European Union, Iceland, 
Liechtenstein, Norway, the Netherlands on behalf of Aruba, Switzerland, Montenegro and 
Korea (over the relevant thr eshold). As the United States is interested in continuity of 
current market access in the United Kingdom, please respond to the following comments:  
a. Please explain how the United Kingdom uses work concessions contracts and 
how the limited coverage for these  contracts is applied.  
The UK uses works concession contracts for the execution of works where the 
consideration is either solely in the right to exploit the works that are the subject of the 
contract or in that right together with payment. The contract mu st be for pecuniary interest 
concluded in writing. In order for the contract to meet the test of a works concession 
contract, there must be a transfer of operating risk to the concessionaire in exploiting the 
works, encompassing demand or supply risk or bo th. The concessionaire is deemed to 
assume operating risk where, under normal operating conditions, it is not guaranteed to 
recoup the investments made or the costs incurred in operating the works which are the 
subject -matter of the concession. The part of  the risk transferred to the concessionaire 
must involve real exposure to the vagaries of the market, such that any potential 
estimated loss incurred by the concessionaire is not merely nominal or negligible.  
 
An example of works concession contracts is th e construction of a toll road under a contract 
concluded in writing where the concessionaire takes all or the majority of the risk attached 
to the operation of the road, such that the concessionaire is exposed to market forces and 
its potential estimated l oss is more than nominal or negligible, and where the only return 
to the concessionaire is the right to receive toll charges from users of the road or that 
right together with payment.  
 
b. Please explain why the United Kingdom applies this distinction between  
procurements for services set out in CPC 51 and work concessions.  
The UK is replicating its current commitments in respect of services and works concessions 
as set out in the EU schedule of commitments. Where a covered entity listed i n 
Annexes  1-3 procure s any of the construction services set out in CPC 51, these would be 
covered by the UK 's market access offer for a GPA Party to the extent that the GPA Party 
has covered that services under its Annex 6 (in accordance with the note to Annex 6). 
However, wor ks concession contracts are only included in the national treatment regime 
for entities covered by Annexes 1 and 2 for the European Union, Iceland, Liechtenstein, 
Norway, the Netherlands on behalf of Aruba, Switzerland, Montenegro and Korea (over 
the relev ant threshold).  
 
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