Public procurement law post-Brexit

The legal regime for public procurement law in the UK (with Scotland as the focus here) has changed, albeit with few immediate changes of substance.

(Click within the image to see the changes)

The key changes to the relevant legal instruments/considerations and sources of new and further information relevant to Scotland can be found here.

Further comment

One immediate change is that, since 31 December 2020, contract notices for new procurements will go out via a new UK-notification system called “Find a Tender” (further information is available here). 

There are few immediate substantive changes but the UK Government is consulting on these. Its Green Paper aspires to move to more streamlined/concise regulations and simplify processes, as well as mentioning potential change to challenge processes and availability of remedies with little detail at this stage. The Green Paper on Transforming Public Procurement remains open for consultation until 11.45pm on 10 March 2021.

The TCA goes well beyond commitments under the WTO Government Procurement Agreement (GPA), to which the UK is in the process of acceding. The TCA extends market access coverage to the gas and heat distribution sector, private utilities that act as a monopoly and a range of additional services in the hospitality, telecoms, real estate, education and other business sectors.

EU companies should be able to participate on an equal footing with UK companies in bids for tenders covered by the TCA, and vice-versa. The TCA provides for non-discrimination of EU companies established in the UK (and vice-versa) for small-value procurement, i.e. below the threshold of the GPA (from €139,000 to €438,000, depending on the contracting entity, and €5,350,000 for construction services). The TCA’s bilateral dispute settlement mechanisms can be used for disputes relating to the procurement opportunities subject to the GPA.

High level procurement implications:

  • Removal of references to notices being published in the Official Journal of the EU (OJEU).
  • No further use of the ‘European Single Procurement Document’, now a Single Procurement Document.
  • Contracting authorities in Scotland will continue to advertise their procurements, follow Scottish Procurement Regulations procedures (e.g. open, restricted, competitive dialogue, competitive procedure with negotiation, etc.) and comply with legal principles such as transparency, equal treatment and non-discrimination.
  • The Green Paper envisages some radical changes, but the UK will have to follow GPA rules, so under the new system procurement a regulated environment.

Procurements started before 31 December 2020

  • These should continue to follow the previous (EU) regime up to the point of contract award. Many ongoing and complex procurements could continue to be governed by EU rules well into 2021 or beyond.
  • The EU rules will also apply to all framework agreements, and any call-off contracts made under them awarded (or being awarded) before the end of the transition period.

Accordingly, EU laws will continue to be relevant for the foreseeable future.

What changes are likely long-term?

The UK is free to divert from EU-based rules, provided it complies with its obligations under the GPA and other relevant bilateral agreements under the TCA.

This article was co-written by Maya Allen, Trainee Solicitor.

Read more:

State aid/subsidy support post-Brexit
Competition law post-Brexit

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