When the UK left the EU in January, what changed for those involved with public procurement rules? The simple answer is not much – at least for the transition period to 31 December 2020, says Susie Smith of law firm Bevan Brittan.
EU-compliant procurement procedures – including advertising above-threshold contracts in the Official Journal of the European Union (OJEU) – all still apply, while The Withdrawal Agreement also confirms that general EU law principles (such as equality, non-discrimination and transparency) remain in place. Likewise, the Public Contracts Regulations 2015 (as amended), which transpose the public sector and remedies directives into domestic law in England, Wales and Northern Ireland, are retained. This is also the case for concessions, utilities and defence and security procurement regulations.
At the end of the transition period, public procurement processes started, but not finalised, will be subject to EU rules. In the case of existing framework agreements, the rules will continue to apply to contracts awarded/call-offs made. This raises the prospect of continued application of EU law for some procurements well beyond December 2020, with two sets of rules running in parallel in the short term.
However, 2021 should bring greater clarity on arrangements. The outcome will be closely linked to progress made on the UK’s trade deals. But whatever changes are made, the system will, as a minimum, have to comply with the WTO’s Government Procurement Agreement that commits members to open up parts of their public procurement markets to contractors from other member countries. One possible outcome is greater simplicity by reducing the number of procedures and making tender processes less prescriptive.