Nouhaila Charhabil
Katerina Nikolaidou
The aim of this article is to analyse , the consequences of Brexit in public procurement, and determine how the law stands currently.
An important question to be answered is how Brexit changed the law in the UK. Indeed, at the end of the Brexit transition on the 31st of December 2020 , the EU law ceased to apply in the UK.
The pre-Brexit Regulations: Public Contracts Reulations 2015, Utilities Contracts Regulations 2016, Concession Contracts Regualations 2016, Defense and Security Public Contracts Regulations 2011, continues in force after Brexit with none substantive changes in their provisions.
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The UK after Brexit remained an independent part to the GPA. This means that for contractors and suppliers outside of the EU still applies the World Trade Organisation’s Government Procurement Agreement. As for the UK based companies they can participate in the public procurement process in GPA jurisdictions in the same way as before 1/01/2021. The Government Procurement Agreement (GPA) requires parties to open up public procurement for economic operators from signatory states within the scope of commitments. The GPA involves principles of fairness, impartiality, transparency and non-discrimination.
The UK/EU Trade and Cooperation Agreement (TCA) incorporates and expands on the parties’ commitments under the GPA. The TCA confirms that as a member of the GPA, the UK and the EU public procurement markets will be opened up to bidder from each other’s jurisdictions as long as it is covered by the GPA. The TCA brings other contracts into effect that would be otherwise excluded under the GPA. These include procurement conducted by privately owned utilities operating by way of special and exclusive rights, procurements connected with the productions, transport or distribution of gas or heat or the supply of gas or heat to such networks, and procurements for certain services, including hotel and restaurant services, food serving services, beverage serving services, telecommunication related services, certain real estate services, certain other business services, and education services.
The UK is no longer a member of the EU; therefore, it will need to shape its own procurement rules to suit its individual political priorities. However, the UK will make sure that the new legislation complies with the UK’s obligations as a member of the WTO’s Government Procurement Agreement and will not represent an environment that some may have preferred.[1]
The main changes that will be made to the UK public procurement will imply the replacement of the Public Contracts Regulations 2015, the Utilities Contracts Regulations 2016, the Concession Contracts Regulations 2016, and the Defence and Security Public Contracts Regulations 2011 by a single new legislation. The main aim is to simplify procurement, reduce bureaucracy, and create a fairer system that works better for buyers and suppliers.
These changes will imply the creation of one joined-up procurement system, in order for suppliers to only give their core credentials once and in one place. This change is significant as it will make it easier for organisations of all sizes to bid for public sector contracts and find information in a sole source.[2]
The improvement of how public procurement is regulated will allow taxpayers to save money, but also boost productivity, spread opportunity, improve public services and empower communities.
The main reason behind creating a procurement regime that is simple, flexible and that takes account of social value is to help communities recover from COVID-19 pandemic and support transition to net zero carbon emissions.[3] This is important because a more flexible procurement system will allow suppliers to negotiate the way they wanted to or design procurement processes in ways to suit suppliers or the public service.
This reform will create a freedom to talk to supplier earlier and throughout the process, share problems, and innovative fresh solutions to deliver best outcomes for everyone.
The changes that will be made to the new procurement system will take some time to come into effect. Indeed, the legislation will need to pass through both houses of Parliament before it becomes law, and this will not be until 2023. There will be at least 6 months to prepare for the new regime before it goes live. Moreover, there will be information, guidance and training to help everyone understand the new legislation, build confidence in using it and embed changes to the procurement system.
In conclusion, UK public procurement is currently made by the retained legislation pre-Brexit. There will be changes in the UK public procurement system, but change will not be immediate. Therefore, for the time being, until the legislation receives its royal assent the rules on public procurement remain unchanged. However, both procurers and bidders should stay alerted to any changes that the Government may do to the legislation until 2023 and ensure that they have appropriate research to monitor new opportunities.
Table of cases
EU cases
C-324/98 Telaustria Verlags GmbH v Telekom Austria Ag [2000] E.C.R. I-10745
Table of Legislation
EU Legislation
Government Procurement Agreement 2012
Treaty on the Functioning of the European Union 1957
UK Legislation
Concession Contracts Regulations 2016
Continued transitional provisions of the EU/UK Withdrawal Agreement 2020
Defence and Security Public Contracts Regulations 2011
European Union (Withdrawal) Act 2018
Public Contracts Regulations 2015
Public Procurement (Amendment etc) (EU Exit) Regulations 2020
UK/EU Trade and Co-operation Agreement 2020
Utilities Contracts Regulations 2016
Bibliography
Books
Commission of the European Communities, The Single Market Review subseries III (volume 2, Public Procurement 1997)
Christopher R. Yukins, Brexit and Procurement: A US Perspective on the Way Ahead (26 Public Procurement Law Review 71, 2017)
Journal
Arrowsmith Sue, ‘Consequences of Brexit in the Area of the Public Procurement’ (2017)
Online Journals
Stuart Cairns, ‘Brexit: the end of public procurement rules or business as usual?’ (Bird & Bird, 06 January 2021) < https://www.twobirds.com/en/insights/2021/uk/brexit-the-end-of-public-procurement-rules-or-business-as-usual> accessed on 08/07/22
UK Government, ‘Transforming Public Procurement’ (Government Commercial Function, 29 April 2022) < Transforming Public Procurement - GOV.UK (www.gov.uk)> accessed on 12/07/22
[1] Stuart Cairns, ‘Brexit: the end of public procurement rules or business as usual?’ (Bird & Bird, 06 January 2021) < https://www.twobirds.com/en/insights/2021/uk/brexit-the-end-of-public-procurement-rules-or-business-as-usual> accessed on 08/07/22 [2] UK Government, ‘Transforming Public Procurement’ (Government Commercial Function, 29 April 2022) < Transforming Public Procurement - GOV.UK (www.gov.uk)> accessed on 12/07/22 [3] Ibid
