Brexit could give public buyers ‘greater flexibility’

19 September 2018

Breaking away from European procurement rules could allow the UK to create simpler public procurement regulations still based on EU rules.

Sue Arrowsmith, professor of public procurement law and policy at the University of Nottingham, said if the UK was no longer beholden to OJEU procurement regulations after Brexit, it would give the UK “greater flexibility” to simplify procedures in a way that makes buying easier.

Speaking at the YPO World of Procurement conference in London, Arrowsmith said: “I always assumed it would be great to move away from the EU system and do something better. But actually, how it appears depends on what we do with it.”

Her comments come as the exit negotiations between the UK and the EU reach another major milestone. With less than six months to go before the official exit date, prime minister Theresa May will meet with European leaders in Salzburg today to convince them of the merits of her Chequers solution.

The outcome of the ongoing Brexit negotiations will have a medium to long-term impact on procurement regulations. The UK could be required to keep European public procurement standards in exchange for a potential deal. But if it is not, Arrowsmith said there was a possibility the UK could instead move to the less stringent WTO Government Procurement Agreement (GPA) rules.

The GPA is an agreement to mutually open up public sector contracts to businesses from other member countries.

Arrowsmith described GPA as a “much more skeletal framework” compared to European regulations, onto which the UK could design its own procedures. “We could simply not change things. Or – and I think this is more likely and better – we could have a simpler system but one based on the EU rules and procedures,” she said.

Arrowsmith said existing EU procedures have the advantage of being familiar, but the UK could “take out all the detailed stuff in the regulations that adds unnecessary complexity and confusion”.

“Stick with the most economically advantageous formula. Stick with the idea of objective rules and criteria but take out all the detail. That would be my favourite approach. And at least we could use the existing case laws – that stops you wondering what a new procurement system means.”

GPA, or GPA plus – where the UK adds a layer of regulations to bring it closer in line with EU regulations – was one of four possible outcomes for public procurement Arrowsmith described.

Another possible outcome was continued compliance with EU rules, which would be necessary if the UK and EU agreed on a Norway-style model where the UK stays in the European Economic Area.

Less likely was a bespoke procurement arrangement. Even more improbably, the UK could decide to scrap all existing regulations and start from a clean slate, but Arrowsmith dismissed this outcome.

Arrowsmith said public procurement rules were unlikely to change in practice in the short term because the Withdrawal Bill passed by Parliament copied existing regulations into UK law.

But she added that the while the UK was currently a member of the GPA through its EU membership, it was still in the process of securing membership of the agreement as an individual party and may not be able to secure GPA membership on the same terms it enjoys as part of the EU.

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