Public Procurement after Brexit – January 2020 update

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Introduction

The European Union (Withdrawal Agreement) Act 2020 (the ‘Act’) received royal assent on 23rd January 2020, and the EU-UK withdrawal agreement was swiftly signed by the leaders of the European Commission and Council. The EU Parliament ratified the deal on 29th January, the UK is due to leave the EU at midnight on 31 January 2020 (‘Exit Day’). The UK will remain in the EU’s single market and customs union until the end of 2020 but will no longer be a part of the decision-making bodies as of Exit Day.

What does the Act say about public procurement following the UK’s exit from the EU?

Despite the UK’s exit from the EU at the end of this month, regulation of the public procurement process will continue without any noticeable changes. This is because s.2 of the Act amends the European Union (Withdrawal) Act 2018 (introduced by Theresa May’s government in June 2018 and passed to repeal the European Communities Act 1972) to add s.1B(2), which states that “EU derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day”. This provision effectively preserves a functioning statute book in the immediate aftermath of the UK’s exit from the EU.

The Act has also enabled what is being described as a “mass deferral” of the Statutory Instruments that had previously been passed in anticipation of (for the most part, a ‘no-deal’) Brexit.  This means that the Public Procurement (Amendment etc.) (EU Exit) Regulations 2019 and Public Procurement (Amendment etc. (EU Exit) (No.2) Regulations 2019 (‘the amended Procurement Regulations’) which we had previously reported as coming into force on ‘Exit Day’ (31st January) will now come into force on 31st December 2020 at 11pm (‘Implementation Period (IP) Completion Day’). The amended Procurement Regulations, passed by Parliament in March 2019, amend a number of key procurement statutes including the Public Contract Regulations 2015, the Concession Contracts Regulations 2016 and the Utilities Contracts Regulations 2016.

What do the amended Procurement Regulations say?

Despite the level of detail in the amended Procurement Regulations, the content of the PCR 2015, CCR 2016, UCR 2016 and other associated regulations remain largely unchanged and the amendments merely facilitate and enable the continuing operation of the public procurement process in the UK.

We set out in our previous update on the impact of Brexit, the notable amendments applicable (now effective from IP Completion Day rather than Exit Day). However, the key practical difference that will impact contracting authorities/utilities from IP Completion Day will be the requirement to use a new UK only e-notification serve to access and respond to procurement notices (‘Find a Tender’) rather than using OJEU Notices or Tenders Electronic Daily (TED).

What does this all mean to public procurements now?

  • During the transition period i.e. from 31st January 2020 to 31st December 2020, public procurements continue to be bound by the same UK and EU rules as they are now.
  • From 1st January 2021, the amended Procurement Regulations described above come into force – their main effect being a move to the UK e-notification service “Find a Tender” but otherwise the existing public procurement regime stays largely the same.
  • For any procurement started prior to and not yet completed by 31st December 2020, or for any call-offs under framework agreements where the procurement commenced prior to 31st December 2020, the present procurement regime applies up to award.

It is worth noting that after 31st December 2020, the government has powers to make secondary legislation, including temporary powers to amend retained EU law that would otherwise no longer operate appropriately once the UK has left the EU, to deal with any deficiencies that may arise following the end of the transition period. It is therefore important to keep an eye on proposed legislative changes during this time.

About our team

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.

Posted in Ellen Painter, Juli Lau, Nicola Sumner, Outsourcing and Shared Services, Procurement, Procurement challenges.