Post-Brexit public sector procurement

Government procurement braces
Date Posted: 02/11/2020 Category:
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Post-Brexit public sector procurement

Date Posted: 02/11/2020 Category:

We officially left the EU on the 31 January 2020. The current EU public procurement rules have continued in force in the UK during an 11 month transition period, Under the terms of the EU-UK Withdrawal Agreement. The transition period is close to expiring. The UK may still be able to agree a limited form of Free Trade Agreement (FTA) with the EU by the end of this year, it seems unlikely this will include any specific requirements on public procurement. Below we set out the key provisions and practical implications for public sector procurement.

Ability to tender for contracts across the EU

The UK was previously a party to the GPA, through its membership to the EU. The UK will continue to be party to the GPA thanks to the steps taken by the UK government, but as an independent member. 

As a result, UK businesses will retain rights to compete for public contracts across the EU, albeit on a more limited basis than before. Scope of procurement covered under the GPA is narrower than the scope of covered procurement under the EU procurement directives, this specifically relates to the utility sectors, coverage of private utilities, the defence sector, some services and concessions and certain private contracts subsidised by government. The GPA also does not include below-threshold procurement.

Amendments to relevant UK governing legislation

The political declaration agreed as part of the Withdrawal Agreement set out the basis on which the EU & the UK were to negotiate the terms of the future relationship. 

Working on the presumption that there is going to be “no deal”, at least with regards public procurement, both the UK and Scottish governments have published legislation amending the current regulations to reflect the decoupling of our domestic regime from the EU.

As a result, in England, Wales & NI the following regulations have been amended coming into effect on 31stDecember 2020, 

  • Public Procurement (Amendment etc.) (EU Exit) Regulations 2019
  • Public Procurement (Amendment etc. (EU Exit) (No.2) Regulations 2019 
  • Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019. 

Ability for EU-based businesses to compete for UK contracts

Post-transition, businesses based in the remaining EU-27 or other EEA country will be treated as an “economic operator from a GPA state” when competing for UK public sector contracts. As a result, they will have corresponding but more limited rights to be treated fairly to the extent that the GPA applies to the contract they are competing for.

Ability to “Find a Tender”

The amending UK legislation includes decoupling the advertising of notices from the OJEU. Contracting authorities and utilities will no longer be required to publish notices in the OJEU. From 1 January 2021, notices will be published on “Find a Tender” a new UK e-notification system.

Where a contracting authority uses a third party ‘eSender’ to publish its procurement notices, it will now need to publish these eSenders to “Find a Tender”. Any requirements to publish notices on other platforms such as Contracts Finder, MOD Defence Contracts Online, or devolved administration systems such as Public Contracts Scotland will remain the same.

Future divergence?

In the longer term, the UK Government has made clear statements that it intends to make changes to the public procurement rules, with Boris Johnson in 2019 stating he would like to “fundamentally change” them to “back British business”. The Cabinet Office is currently consulting stakeholders on future changes to the rules including on transparency, evaluation and award criteria, and remedies and procedures, with a Green paper expected either later this year or early next year. Assuming the essential structure of the rules in terms of open, fair and transparent tendering of public contracts remains in place, there is certainly an opportunity to clarify and simplify a number of the provisions in the current set of UK regulations.

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