Brexit “no deal” notice for public procurement raises more questions than it answers

The Government has now published its “no deal notice” for public procurement.

You can find it here.

All that this notice says is that instead of having to advertise “above tendering threshold” contracts in the Official Journal of the European Union (OJEU), there will be a UK-wide website for these notices. This will be in addition to the need to advertise on Contracts Finder (or Sell2Wales), rather than instead of it.

The notice confirms that there will need to be amending Regulations addressing the “technical” changes to the public procurement rules that will be needed on Brexit. These include:

• thresholds expressed in euros, which will need to be converted to pounds;
• references to European institutions, which will need to refer to UK institutions, where they exist;
• deciding whether the EU “Common Procurement Vocabulary” should still be used to decide whether particular activities are works, services or supplies;
• deciding whether the obligations in the UK Regulations are still enforceable by contractors and suppliers based in other EU Member States (which they will unless the amending Regulations change this); and
• deciding whether the EU Treaty principles (of non-discrimination, equal treatment and transparency) will apply to “below-threshold contracts” which may be of “cross-border interest”

The notice also states that the UK is hoping to sign up to the World Trade Organisation’s Government Purchasing Agreement (GPA). The application was submitted on 1st June 2018 but the WTO has asked for more information, including more information about the UK’s proposed public procurement regime. Further information on this is available in the Parliamentary briefing paper on Brexit and public procurement, published at the start of September – see here.

For more information

Please contact Andrew Millross.

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