2018/19 was a year of significant shifts in UK government procurement, one predictably dominated by Brexit and its associated fears and preparations.
A major part of the UK Government’s preparation for Brexit from a procurement point of view has been the introduction of Statutory Instruments that will “amend or remove provisions in the UK regulations that would otherwise be inoperable or inappropriate once the UK has left the EU”.
The UK Government is responsible for procurement legislation in England, Wales and Northern Ireland – it is a devolved matter in Scotland – and the key relevant legislative regulations are the Public Contracts Regulations 2015 (PCR), the Utilities Contracts Regulations 2016 (UCR), the Concession Contracts Regulations 2016 (CCR), and the Defence and Security Public Contracts Regulations 2011.
One of the key differences for procurement cited in the Law Reviews’ Government Procurement Review for 2018/19 looks back on for the post-Brexit world will be that procuring entities will have to send notices such as contract advertisements to an as-yet unestablished UK e-notification service instead of the EU Publishing Office. The UK Government has published several guidance notes on the topic of public procurement as it steps up its preparations for Brexit.
These changes would take immediate effect in the event of a no deal Brexit, but they will likely be deferred should a deal be reached. The implementation of the changes would likely be delayed until the end of the transition period as outlined in the withdrawal agreement, which runs until the end of 2020 as it stands. “Significant changes”, such as further amendments to the legislation or to upcoming changes to procurement, would require passage through the entire parliamentary procedure, and as such are said to be “unlikely in the short term”.
The UK is currently a member of the World Trade Organisation’s Government Procurement Agreement (GPA) through their EU membership. GPA membership for the UK as an individual entity after Brexit was granted by the GPA members in February 2019. What this will mean is that the UK will have to open their market of higher value public procurement opportunities to other GPA parties in reciprocation for those other parties having done similar for the UK.
In October 2018, provisions requiring all procurement communications to be fully electronic that had previously been postponed finally came into effect, along with eCertis, an information system that allows people to identify different certificates requested in procurement procedures across the EU.
The report states that “despite the current uncertainty around the timing and terms on which the UK will leave the EU, it is clear that the rules governing public procurement in the UK will remain largely unchanged in the short term”, but that “the future shape of UK procurement law [after Brexit] will depend on the international agreements it chooses to make with the EU and other countries”.
It concludes by saying that further agreements on procurement could be included in any subsequent EU-UK trade deals, which could require future UK legislation to remain closely aligned with that of the EU.