The information in this article reflects the position at the time of writing. The latest position at 6 February 2020 is detailed here.
On 14th January 2019, the Government published guidance on public procurement procedures in the event of a “no deal” Brexit. This was most recently updated on 4th September 2019 suggesting that contracting authorities, including public authorities, should be and are focusing themselves on how to prepare for a “no deal” Brexit  . Guidance extends to utilities and is also relevant to procurements conducted under the Utilities Contracts Regulations 2016.
In March 2019, Parliament passed the Public Procurement (Amendment etc.) (EU Exit) (No. 2) Regulations 2019 which amends a number of key procurement statutes, including the Public Contract Regulations 2015, the Concession Contracts Regulations 2016 and the Utilities Contracts Regulations 2016. If the UK does leave the EU without a deal, the new Regulations will come into force on Exit Day, which is currently 31st October 2019. However, the content of these Regulations remain largely unchanged to enable the continuing operation of the public procurement process.
For further details on the changes to the procurement process made by the 2019 Regulations or issues that may arise on Exit Day, read our Update on UK Public Procurement for contracting authorities and utilities published on 7 March 2019.
Find a Tender Service (‘FTS’)
In the case of a “no deal” Brexit, the key difference that will impact contracting authorities/utilities will be the requirement to use a new UK only e-notification service to access and respond to procurement notices rather than using OJEU Notices or Tenders Electronic Daily (TED). The new UK service is called “Find a Tender” (FTS) and it will be operative from 11pm on 31st October 2019 if the UK leaves the EU without a deal. Earlier versions are available for testing in advance of its commencement, information for which can be accessed from email@example.com.
If a contracting authority/utility is currently working with a third party (“e-sender”) to submit notices to OJEU/TED on their behalf, the e-sender can continue to act if they have completed the requirements to access FTS. Equally, if a contracting authority/utility is submitting the notices themselves, they need to register to use FTS in anticipation of the 31st October deadline. Further information about this can be found on the Gov.uk website.Suppliers will also need to sign up to the FTS to obtain access to any notices following 31st October 2019.
Key points to note for FTS
- Notices will be in the same format and contain the same information as under OJEU/TED and will be available on the new FTS site.
- To keep an audit trail throughout the procurement, spaces will be available on the FTS notices to include an OJEU/TED reference number. This caters for organisations who, due to the timing of their procurement, advertise part of a procurement (e.g. Contract Notice) on OJEU and the rest (e.g. Contract Award Notice) on the FTS.
- There is no need to resubmit notices that have already been submitted on OJEU/TED if they have been published prior to 11pm on 31st October. However, any subsequent notices for the same procurement, which are published after 11pm on 31st October, will need to be published on the FTS.
- Contracting authorities/utilities can continue to advertise notices on other sites (including Contract Finder, MOD Defence Contracts Online etc) as per their current practice. If an authority is publishing to both FTS and Contracts Finder, they will need to publish on FTS first and then the other sites.
- Voluntary Ex-Ante Transparency Notices (VEAT) are built into FTS and will still be available for contracting authorities/utilities to use.
- The UK will accede to the WTO’s Government Procurement Agreement after 31st October, where UK operators will have access to EU procurement markets and other signatories on a non-discriminatory basis.
- There will be no material change to non-UK companies bidding for tenders. They should continue to be treated equally and fairly through open competition as per existing arrangements. They will need to track new notices on FTS instead of OJEU however to ensure they do not miss new UK opportunities.
Steps to take in anticipation of a “no deal” Brexit
- Make sure that you (or any third party “e-senders” you hire) have completed all the formalities so that you are registered and can use FTS from 31st October 2019.
- Make sure that your key suppliers and partners are aware of the changes relating to FTS and that they can continue to use other domestic procurement portals as normal.
- Make sure that if you (or any e-senders you use) have submitted a notice close to 11pm on the exit day that the notice is published before the UK leaves the EU. Notices can take up to 48 hours to be published following submissions. If the notice is not published before 11pm on Exit Day, you should resubmit the notice to FTS.
We have extensive experience advising on the public procurements under the PCR, UCR and CCR regimes, and would be happy to advise further on how to manage your procurement process, in light of the UK leaving the EU.
This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published.