Public Procurement Law Update: Brexit

UK:

Public Procurement Law Update: Brexit

It will not have escaped your attention that the UK will leave
the European Union at 11 p.m. GMT (midnight CET) on January 31,
2020. What are the implications for public procurement? Regardless
of whether you are a contracting authority, utility or bidder in a
regulated procurement process the key points are:

• On a day-to-day basis nothing will
  immediately change – your obligations (and rights) remain the
  same.




• The current position will continue to
  apply, at least, until December 31, 2020.




• EU procurement law will continue to
  apply, at least to a time-limited extent, even after December 31,
  2020. This is because the UK / EU Withdrawal Agreement makes
  provision for this. This is relevant to procurements that are
  commenced prior to that date.




• The various procurement regulations
  (e.g. Public Contracts Regulations 2015, the utilities and
  concessions rules and Scottish equivalent regulations) will then
  continue to have effect as part of domestic law. These rules will
  thereafter apply until updated or amended by subsequent
  legislation.




• The future shape of procurement
  regulation in the UK will depend on four main interrelated
  factors: 
  

  • The WTO Government Procurement
    Agreement which will provide a baseline set of obligations.

  
  

  • The terms of any trade agreements,
    perhaps, most obviously, the terms of a UK / EU trade
    agreement. 

  
  

  • The UK’s domestic reform agenda
    – a view that the current regulations are sub-optimal in some
    respects is evidently held in some quarters in government (the view
    that the current Directives have not achieved their stated aim of
    simplification is also widely expressed within the EU).

  
  

  • The desirability of a common UK
    regulatory framework balanced against the current devolved
    regulatory position particularly as regards Scotland, but also to
    an extent Wales. 

What Happens Next – the Legislative Mechanics?

Articles 75 – 78 of the October 2019 Withdrawal Agreement
address procurement. Article 75 defines the rules within scope of
the agreement, broadly the public sector, utilities and concessions
Directives and various sector-specific procurement rules such as
Regulation 1370/2007 for public passenger transport services by
rail and road.

Article 76 then goes on to provide that these rules shall apply
and continue to apply to any procurement procedure launched during
the transition period – that is on or prior to 31 December
2020. 

There are special rules for framework agreements – the
rules continue to apply to unexpired frameworks, even after the end
of the transition period, and to any framework where the process to
establish it has been launched during the transition period. In the
public sector, this will mean that these rules may continue to
impact into the mid-2020s. For utilities, where longer-term
frameworks are permitted, impacts into the late 2020s are not
unrealistic.

Article 77 briefly sets out that the remedies regime shall apply
to any public procurement procedures falling within the ambit of
Article 76. Finally, Article 78 allows for time-limited access to
E-Certis beyond the transition period for unfinished
procurements.

Under the provisions of the European Union (Withdrawal) Act 2018
(EUWA), when the UK exits the EU, EU law in force on IP completion
day will be retained in UK law. Effectively, the UK will take a
snapshot of EU law in force on IP completion day and absorb it into
UK law. Under the Withdrawal Agreement, that “snapshot”
process will happen on 31 December 2020 at the end of the
transition period. 

From then, generally speaking, EU laws on-shored in UK law
(“retained EU law” or EU-based UK law) are likely to
remain broadly the same. This will include current procurement laws
such as the Public Contracts Regulations 2015. There would then be
a requirement for new legislation to bring about subsequent
changes.

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The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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