21 January 2019
What does a “deal” or “no deal” mean for you?
On 14th January, the Government published a guidance note providing information on public procurement procedures in the event of a “no deal” Brexit. The following day, the House of Commons voted against the Government’s proposed agreement for the withdrawal of the UK from the European Union.
The risk of an exit from the EU without an agreement in place on the transitional arrangements, means that organisations and business, including public authorities, utilities and their private sector partners, are necessarily focusing their attention on how to prepare for a “no deal” Brexit.
What is the legal position on public procurement after a ‘no deal’ Brexit?
In December 2018, the Public Procurement (Amendment etc.) (EU Exit) Regulations 2019 (the “Public Procurement Regulations 2019”) were laid, amending a number of statutes, most notably the Public Contracts Regulations 2015, Utilities Contracts Regulations 2016 and the Concession Contracts Regulations 2016.
The Public Procurement Regulations 2019 are in draft form and intended for the most part to take effect on ‘exit day’ (29th March 2019) in the event of ‘no deal’ and are subject to change until they are “made”.
Despite affecting a number of existing statutes, and giving effect to certain EU regulations in domestic UK law, the proposed Public Procurement Regulations 2019 leave the UK public procurement regime largely unchanged. The proposed changes are aimed at allowing the current procurement regime to continue to work largely unchanged in a ‘no deal’ scenario.
Notable issues arising from the draft Public Procurement Regulations 2019 from exit day
o the UK and Gibraltar;
o GPA states, if they have agreements with the EU before exit day confirming that the GPA would apply to a contract of the relevant description;
o EU member states, if the EU had agreed with a GPA state before exit day confirming that the GPA would apply to a contract of the relevant description.
How can you prepare?
What about a procurement which started before but continues beyond 29th March?
The bottom line
If the UK exits the EU on 29th March with no “deal” in place, it is anticipated that contracting authorities and utilities will need to comply with the new Public Procurement Regulations 2019 from 29th March. As above, the key practical change is that you need to gear up to comply with the new notification requirements when these are published.
Procurement regime if a deal is agreed
If a deal is agreed, the existing UK procurement rules will be preserved under the European Union (Withdrawal) Act 2018. This means that the current public procurement regulations will remain broadly unchanged until 31 December 2020 when the implementation period is due to expire, and any procurement procedures which commenced before that date will remain subject to the existing regulatory regime up to award. 
For advice and assistance on procurement and contracting compliance in light of the withdrawal of the UK from the EU, please contact one of our team whose details are listed below.
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.
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