With the UK’s date for leaving the EU now under 50 days away, we take a look at the potential impacts of a no-deal Brexit on the UK’s public procurement regime.
Public procurement rules across the UK are currently derived from and subject to EU rules. These rules set out how public contracts are awarded to a supplier when the contract tendered is valued over a certain threshold, unless it qualifies for an exclusion. The EU’s Treaty on the Functioning of the European Union sets out fundamental principles, including requirements that processes are transparent and fair.
What procurement law changes will occur?
In the event of a no-deal Brexit, the majority of the procurement regulations and the procedures available to contracting authorities will remain exactly the same; as the European Union (Withdrawal) Act 2018 ensures that all EU law is transferred to UK law on exit day. As it stands, there will be some minor amendments to existing UK procurement law, but this will only be to ensure “continued operability”. The major difference for contracting authorities will be the need to send notices to a new UK e-notification service rather than the EU Publications Office which currently receives these notices.
Contracting authorities have a legal obligation to publish procurement information, consequently, it is vital that they are prepared for these changes and understand what will be required of them in the future. Authorities which currently register directly with the EU Publications Office will now need to register directly with the new UK e-notification service. Authorities that rely on a third party provider need to ensure that this provider intends to sign up to the new system. Sell2Wales has not yet indicated that it intends to do this, meaning authorities will need to continue to monitor the situation in these cases and may need to use an alternative third party provider if its current provider has not signed up to the new UK system post-Brexit. Similarly, suppliers looking to enter into new contracts would need to check the new procurement portal for opportunities as well as the existing portals.
Authorities will also need to be aware that national requirements to advertise contracts in current publications, such as Contracts Finder and Sell2Wales will remain unchanged.
Ongoing procurement processes at the time of a no-deal exit
There is a little uncertainty surrounding procurement processes that will be ongoing at the time of a no-deal exit date. Authorities in this position will be required to comply with the revised regulations from that point onwards, although the government has advised that, in some instances, the effect of the previous rules will be preserved to “maintain fairness throughout the procurement”. Thus, the treatment of ongoing procurement upon exit date will need to be assessed on a case by case basis.
Looking to the future, leaving the EU may potentially result in more substantial changes to the procurement regime. The nature of these changes will depend on the future relationship negotiated between the UK and the EU and also on any other bilateral trade agreements entered into by the UK.