How Will Brexit Affect Public Procurement?

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As of 1 February 2020, the UK has withdrawn from the EU after The European Union (Withdrawal Agreement) Act 2020 (from here on, the Act) received royal assent on 23 January 2020, and the EU-UK withdrawal agreement was signed by the leaders of the European Commission and Council. Part of this ‘withdrawal agreement’ is the provision of a transition period ending on 31 December 2020. This means that while the UK will remain in the EU’s single market and customs union until the end of 2020, it will no longer be a part of the decision-making bodies as of January 2020.

While we previously speculated on how Brexit might affect the process of public procurement with the help of a variety legal specialists, we now have a more fully-formed vision of things in the aftermath of the country’ withdrawal from the European Union. Here, we’ll illuminate the more concrete details surrounding public procurement now that we have left the European Union.

What does the Act say about public procurement

Despite our exit from the EU at the end of January, regulation of the public procurement process will continue without any noticeable changes. This is because the Act amends the European Union (Withdrawal) Act 2018, which was introduced by Theresa May’s government in June 2018. Said amendment states that “EU derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day”. This preserves a functioning statute book in the immediate aftermath of the UK’s exit from the EU.

The Act also enables a “mass deferral” of the Statutory Instruments that had previously been passed in the event of a no-deal Brexit. This means that the Public Procurement Regulations 2019, which were previously thought to come into force on Exit Day (31 January), will now come into force on 31 December 2020 at 11 pm, which is being noted as Implementation Period Completion Day.

Meanwhile, the amended Procurement Regulations, passed by Parliament in March 2019, introduced changes to several procurement statutes, including the Public Contract Regulations 2015, the Concession Contracts Regulations 2016 and the Utilities Contracts Regulations 2016.

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Although the amended Procurement Regulations feature a large level of detail, the content within them and other associated regulations remain unchanged for the most part; the amendments merely facilitate and enable the continuing operation of the public procurement process in the UK.

With notable amendments effective from IP Completion Day, the other key practical difference that will impact contracting authorities will be the requirement to use a new UK-only e-notification service to access and respond to procurement notices called Find a Tender. This replaces the previously used Official Journal of the European Union Notices and Tenders Electronic Daily systems.

How does this affect public procurements now?

  • During the transition period from 31 January 2020 to 31 December 2020, public procurements continue to be bound by the same UK and EU rules as they are now.
  • From January 2021, the amended Procurement Regulations noted above come into force – their main effect being a move to the UK e-notification service Find a Tender but otherwise, the existing public procurement regime stays largely the same.
  • For any procurement started prior to and not yet completed by 31 December 2020, or for any call-offs under framework agreements where the procurement commenced prior to 31 December 2020, the present procurement regime applies up to the awarding.

Additionally, it’s worth noting that the transition period has ended, the government has powers to make secondary legislation, including temporary powers to amend retained EU law that would otherwise no longer operate appropriately once the UK has left the EU. This helps to deal with any deficiencies that may arise following the end of the transition period. This means it’s important to keep an eye on proposed legislative changes during this time.

Advice for contracting authorities and businesses

As stated, any contracting authorities will need to publish public procurement notices through Find A Tender. If you use a third party eSender to manage your procurement notices, you’ll be able to continue to use them provided that they have confirmed they can publish notices to Find a Tender.

However, if you do not use an eSender and/or intend to publish notices directly to Find a Tender, you will need to register with the service. This can be done now by creating a buyer’s account on Contracts Finder. All Contracts Finder accounts will automatically be given access to publish notices on Find a Tender.

For businesses looking to procure goods and services, they will be able to use Find a Tender to view public procurement notices published by UK contracting authorities from 1 January 2021.

Such businesses will however still be able to use existing portals such as Contracts Finder, MOD Defence Contracts Online, Public Contracts Scotland, Sell2Wales and eTendersNI to view low value or location-specific notices.

Brexit negotiations written on mountain road sign. Hard Brexit concept. At the top of the agenda. Mountains in background.
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