Amendments to the Public Procurement Regulations

There have been two recent amendments to the Public Procurement Regulations as summarised below: one very important change that applies to NHS England and NHS Foundation Trusts is described at the end of this post.

Amendments on UK Accession to the World Trade Organisation’s Agreement on Government Procurement (GPA)

Public Procurement (Agreement on Government Procurement) (Amendment) Regulations 2021/573 came into force on 11th June 2021.

The amendment gives effect to the UK’s legal obligations under the World Trade Organisation’s Agreement on Government Procurement (GPA) following the UK’s accession to the GPA in its own right after leaving the EU.

The following amendments are made:

• Relevant definitions have been amended and, for the avoidance of doubt, a schedule listing parties to the GPA has been included;

• The inclusion of the obligations owed by UK contracting authorities (under the UK’s Appendix 1 to the GPA) to the works, supplies, services and economic operators of any GPA party to ensure that no GPA party receives less favourable treatment;

• Updating the obligations of UK contracting authorities in respect of international agreements;

• The duty owed by UK contracting authorities to economic operators from the UK to comply with the Public Procurement Regulations is extended to economic operators from GPA parties.

New Version of Schedule 1 Central Government Authorities The Public Procurement (Agreement on Government Procurement)(Amendment)(No.2) Regulations 2021/872 came into force on 16th August 2021. The amendments to the PCR 2015 reflect recent changes to Annex 1 of the UK’s Agreem

ent on Government Procurement (GPA) coverage schedules:

• The Regulations amend the Public Contract Regulations 2015 (along with associated amendments to the Concession Contracts Regulations 2016 and the Utilities Contracts Regulations 2016) to reflect the new definition of the GPA;

• The Regulations contain a new version of Schedule 1, the central government authorities. NHSE and NHS Foundation Trusts have been added for the first time.

NHSE and NHS Foundations Trusts should therefore note that they are now covered by the threshold for services and supplies contracts to the lower value of £122,976.

Employing Foreign Nationals - The Rules...

Civil Sanctions can be imposed on Employers knowingly employing individuals who do not have the legal right to live and work in the UK, this is allowed to be imposed with The Immigration Act 2016.

Fines of up to £20,000 for each individual employed is the Civil Penalty. Prison sentences of up to 5 years, is the Criminal Penalty. Also to note, the reputational damage that could be caused.

It is very important to understand any risks and how to avoid them cannot be exaggerated.

The information below contains information about employment of individuals after May 2014. Different rules apply to individuals employed before then.

First of all, what is your obligation to prevent illegal working?

Employers must carry out “right to work” checks on individuals before they start working and carry out follow up checks for any individual who has only time limited permission to work in the UK, must also ensure records are kept of all checks carried out and that they do not employ anyone they know or have reasonable grounds to believe is an illegal worker.

Employers who use Agency workers should ensure the Agency which supplies them has responsibility for performing the right to work checks.

What is the right to work check?

The Home Office has produced a template checklist which all Employers will be find useful but essentially this is a 3 step process which involves an Employer.

1. Obtaining the individuals original documents. These are prescribed by the Home Office and include passports, national identity and biometric residence permit or card numbers.

2. Checking that the documents are genuine i.e. that they are valid originals which have not been altered. The checking should be accrued out in the presence of the individual so that verification of identity can be carried out more reliably and also to enable the individual to be questioned on their authenticity if needs be. Photographs should be checked for consistency with the appearance of the individual and employers should ensure dates of birth are consistent across all documents. For any students to carry out work checks should be made with the education establishment they are associated with to confirm they are entitled to work the hours proposed. Checks should also be made to ensure that the work proposed for the individual is work which is not restricted by their documentation.

3. Taking copies of the documents obtained at the time they are inspected and keeping these safe and secure .Electronic copies can be taken provided that it is in a format which cannot be changed eg PDF format. Copies of passports can be limited to copies of those pages giving personal information or showing any UK endorsements.ID documents should be kept secure for as long as the individual works for the employer and for 2 years afterwards.

• (Until 31st August 2021, as a result of COVID-19 restrictions employers can conduct checks via a video call. This involves the individual sending their documents electronically and then presenting the original documents to the camera in a subsequent video call).

• (Non-EEA residents who have a biometric residence permit or card or EEA nationals who have settled or pre settled status an optional online checking system is available).

• (Sponsors of Skilled and Temporary Workers are required to provide additional checks)

Categories of Documents

The Home Office recognises 2 categories of documents an Employer needs to see;

1. List A Documents - These are documents applicable to individuals with a permanent right to work in the UK

2. List B Documents - These are documents applicable to individuals who either have only a temporary right to work in the UK ( in which case the right to work ends when their permission ends) or who need to provide further evidence of their right to work, ( in which case permission to work cannot be more than 6 months). For those individuals who can only produce documents from List B an Employer will be required to conduct follow up checks to ensure employment can continue lawfully.

In reference to Brexit

EEA citizens arriving to work in the UK from 1st July 2021 Employers will need to obtain evidence of immigration status in addition to their passports. This will require an Employer to obtain evidence of that individuals eligibility under the EU Settlement Scheme (which protects EEA citizens living in the UK for 5 years or more at 31/12/2020), or under the new ‘points based’ immigration system

For more information regarding employing workers from outside the UK, please contact us via one of the following contact methods;

• Telephone: 0191 213 1010

• Email: enquiries@mckeagandco.com

• Website: Complete our Contact Us form.

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