As we inch ever closer to 29 March 2019, there is an increased focus on contingency issues in the event of a ‘no-deal’ Brexit. How will this affect public bodies and other contracting authorities in terms of their obligations under the procurement rules and what is the likely impact for suppliers? In an attempt to address some of these questions, the UK Government published a brief Guidance note on 13 September 2018. This note briefly discusses some of the issues. The key point to bear in mind, is that the procurement rules are currently part of UK legislation and therefore, even in the event of a ‘no deal’ Brexit the fundamental principles and rules would not automatically or immediately change even if there were some changes to the advertising contracts.
What happens to public procurement after 29 March 2019 if there is a no deal Brexit?
UK procurement rules are largely (though not exclusively) derived from EU Directives. At present, all procurement contracts and concessions falling within the ambit of the procurement rules (including those applicable to public bodies, utilities and certain defence and security contracts) are required (subject to certain exceptions) to be advertised in the Official Journal of the European Union (‘OJEU’) on the Tenders Electronic Daily (‘TED’) website. Access to TED advertised contract is also a source of opportunity for many UK based businesses.
Many ‘below threshold’ public procurement contracts and other opportunities outside the scope of the EU procurement directives are advertised on ‘domestic portals’ including those for the devolved Governments. These include: Contracts Finder, Public Contracts Scotland; Sell2Wales and eTendersNI and MOD Defence Contracts Online.
In the event of the UK leaving the EU without a transitional arrangement or other deal regarding future access to the OJEU/TED, the UK will need to make the necessary legislative and practical arrangements to ensure that the contracts are advertised on a UK based e-notification system which will need to be set up to manage these services. The current domestic and regional contract portals will also continue to exist in parallel.
The UK Government Guidance appears to assume that the obligation to advertise ‘in scope’ contracts (i.e. those covered by the procurement Regulations) will all be advertised on the UK-wide e-notification system, although it appears likely that the devolved Governments will want to ensure that contracts are (at least) also available through the relevant regional portals such as Public Contract Scotland.
What does that mean for suppliers and other economic operators
For suppliers, the proposed no-deal scenario would require accessing contract opportunities in the UK through the UK e-notification service and through other national and regional portals. Suppliers will still be able to access OJEU notices on TED. However, if the UK is no longer part of the EU, UK suppliers would be treated as ‘third country’ suppliers and may not be able to rely on the same rights as they do currently under EU procurement law.
While the UK is making contingency plans in case of a ‘no deal’ scenario, this does not mean it is inevitable. The UK and the EU are still actively negotiating to secure agreement over a Withdrawal Treaty, which if secured and ratified in time, would provide a transition period until the end of 2020. During that period, much of EU law (including the procurement rules) would apply much until it does now.
For further information see: the UK Government Guidance.