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Brexit

Procurement Law

Currently, the award of contracts for the supply of products, services and works by public bodies above certain specified thresholds is governed by the Public Contracts Regulations 2015; these regulations transpose EU Directive 2014/24/EU into the law of the UK.  When transposing the Directive into UK law, the UK Government adopted the “copy-out” approach, making minimal changes to the Directive upon implementation.  The UK is also a member of the World Trade Organisation (WTO) Government Procurement Agreement (GPA) by virtue of its membership of the EU. The UK will need to decide whether it wishes to re-accede to the GPA in its own right after Brexit; the signs are that the UK will look to re-accede, having sent a notice to this effect to the WTO on 5 June 2018.

The key question is what impact will leaving the EU have on public procurement law in the UK?   It is possible that the existing regime will continue to apply for a period of time post Brexit if the UK and the EU agree to a transitional period in which existing laws will continue to apply. At the end of any transitional period and,  assuming that the UK re-accedes  to the GPA, the regime in the UK will be not be too dissimilar from the existing EU regime but, possibly less stringent and with fewer protections. If the UK and the EU agree a trade deal, it is reasonable to assume that it will encompass public procurement and the UK will have to agree to open up its procurement markets to businesses within the EU; a case on point is the CETA agreement between the EU and Canada.

Conversely, a “no deal” Brexit would lead to immediate change for both suppliers and public bodies alike: on 13 September 2018 the UK government produced guidance concerning access to public contracts in the event of a “no deal” Brexit.  The guidance provides that the current requirement for public bodies to publish tenders in the OJEU/TED will come to an end and will be replaced by a UK e-notification service together with amendments to existing legislation to provide for the continued operation of public procurement in the UK.

As with all areas of EU law transposed into UK law, there will remain uncertainty until we know the basis of the UK’s relationship with the EU post Brexit.

For more information please contact Simon Biggin or Stewart Morrison.
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