The Cabinet Office has published its latest guidance on how the UK's public procurement regime will be affected by Brexit, covering the alternative scenarios of departing the EU under the terms of the Withdrawal Agreement with the EU, and a "no-deal" exit.
The Government has also advised that the UK's application to become an independent member of the World Trade Organisation's Government Procurement Agreement (GPA) after Brexit has now been approved, ensuring that UK businesses continue to have access to public sector contracts opened up by other GPA member countries, and vice versa.
UK public contract opportunities
Cabinet Office guidance published last week confirms previous advice that:
- if the UK exits under the proposed Withdrawal Agreement, the current public procurement regime (UK regulations and EU law) will continue to apply unamended during the transitional period (subject to any changes to the EU rules); the existing regime will also continue to apply to any procurements ongoing at the end of the transitional period
- if the UK exits without a deal, the public procurement regime will continue largely unchanged, but there will be appropriate amendments to reflect the UK's new status outside the EU.
The key difference in a no-deal scenario is that contracting authorities will have to send notices to the new UK e-notification service, instead of the EU Publications Office (for OJEU/TED publication). Requirements to advertise on other UK platforms, such as Contracts Finder, MOD Defence Contracts Online or platforms of the devolved administrations, will remain unchanged. Suppliers will need to access the new UK service (and/or other relevant UK platforms) for public contract opportunities in the UK; access to contract opportunities in the EU will continue via OJEU/TED.
The new UK e-notification service is to be available for active use from the time of UK exit. Contracting authorities are advised:
- if they work with e-senders, that they should be able to continue using those services, but should check with their providers on progress towards integrating with the new UK system (a number of e-senders have already said they would be integrating their services with the new system early this year)
- if they wish to publish directly on the new UK system and are not already Contracts Finder users, they will need a Contracts Finder Supplier Registration Service account (no action required for existing users).
GPA access to overseas public contracts
The GPA allows mutual access to the parties' government procurement markets. Following provisional approval in November (click here to read our article for more details), final approval has now been given for the UK to accede to the GPA as a member in its own right once it leaves the EU. This means that UK businesses will be able to continue to bid for public sector contracts in GPA member countries, said to be worth £1.3 trillion a year. In return, suppliers in GPA member countries will be able to continue to bid for UK public sector contracts.
If the UK leaves the EU under the proposed Withdrawal Agreement, it will continue to be covered by the GPA via the EU during the transitional period. In a no-deal scenario it would cease to be a member via the EU and there would be a short gap (of up to a month) before its independent GPA membership would become effective, while necessary accession processes are completed. UK businesses would lose their legal rights under the GPA to access public procurement opportunities during that gap period, although the Government is advising that they may still have similar rights under the national law of individual countries.
Details of the UK's market access commitments have yet to be provided, but are understood to replicate current coverage with minor technical adjustments. The Government has previously stated that the commitments do not include contracts for health services and some other key services, but that it will update them within three months of their coming into effect to reflect the evolution of the UK's procurement market.
For more information on the UK's GPA accession, please see guidance on bidding for government contracts overseas in a ‘no deal’ Brexit and an article from the World Trade Organization.