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Eversheds Sutherland Procurement Update - The impacts of Brexit on UK procurement law

  • Northern Ireland


    More and more clients are asking us what Brexit means for procurement law going forward. In this briefing, we look at some of the main changes now that the UK has left the EU and the transition period has ended, and what the UK government’s intentions are in relation to procurement law going forward.

    Procurement law post-Brexit – what has changed?

    In the short-term, not much. Procurement law in the UK post-Brexit is much the same as the law that applied prior to the end of the transition period. The Public Contracts Regulations 2015, the Utilities Contracts Regulations 2016 and the Concessions Contracts Regulations 2016 all continue to apply but in an amended form to reflect the UK’s new status outside the EU. So it’s largely business as usual.

    The existing Regulations are amended by the Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (SI 2020 No. 1319). This SI (made under the European Union (Withdrawal) Act 2018) came into force on 31 December 2020 and amends the existing Regulations to ensure that they continue to function properly after the end of the transition period. It does this principally by removing EU-specific references from the existing Regulations and replacing them with UK references. So, for example, references in the existing Regulations to the OJEU or the EU Publications Office are now supplanted by references to the new UK e-notification service, the Find a Tender Service (or FTS), and references to the European Single Procurement Document (or ESPD) become the Single Procurement Document. Similarly, references to the European Commission are generally replaced with references to the Cabinet Office, and sums in euros are amended to refer to sterling instead.

    All of this amounts to a kind of a face-lift for the existing Regulations, the changes being really only superficial at this point. This is intentional as the UK’s medium-term plan is for a complete overhaul of what is described, in the foreward to the Government’s Green Paper on Transforming public procurement, as an “outdated public procurement regime”. Little point, it would seem, in making deep changes to the existing rules now when larger plans are afoot to create a new regulatory framework “that delivers the best commercial outcomes with the least burden on our businesses and the public sector”.1 Better to maintain a “steady state” for the time being and amend the existing regulatory framework, but only insofar as is strictly necessary to allow it to function effectively until a new framework is put in place.

    So it’s out with the “old” rules and in with the new?

    No, not really. It’s important to note that the other key thing that the 2020 Regulations do is to make provision for the ongoing application of EU procurement law to above-threshold competitions launched before the end of the Brexit transition period, and which are not yet finalised2. This means that the amendments mentioned above (referred to in the legislation as “steady state amendments”) do not apply to such competitions, which continue to be governed by the existing Regulations in unamended form. So, for example, notices must continue to be sent to the EU Publications Office and the obligation to submit reports to the European Commission remains.

    The same goes for framework agreements set up before the end of the transition period which have not yet expired. These framework agreements and call-off procedures under them are not affected by the steady state amendments.

    This means that for some time to come, UK authorities will need to operate under two sets of procurement rules: the “old” EU rules for competitions launched but not concluded before the end of 2020, and the procurement rules as amended by the 2020 Regulations, which will apply to all above-threshold competitions launched on or after 1 January 2021.

    Is the UK free to do whatever it wants now that it has left the EU?

    No. Although the UK is now free to depart from EU procurement law as of 1 January 2021, it is constrained by the WTO Agreement on Government Procurement (or GPA) which it joined as an independent member on 1 January 2021.

    The GPA is an international agreement establishing a framework of rights and obligations for government procurement among its signatories, who have agreed that suppliers of goods and services in other signatory countries will be treated no less favourably than domestic suppliers in procurements covered by the GPA. The GPA contains a number of provisions that are designed to ensure that bidding procedures for public sector contracts in signatory countries are transparent, effective and fair.

    So any new system of procurement rules that the UK puts in place will have to comply with the UK’s obligations under the GPA.

    So what is proposed going forward?

    The Green Paper was published in December 2020. Simplification, flexibility, transparency, achieving value for money that includes social value, speeding up the review system and focusing redress on pre-contractual remedies are all stated policy objectives of the proposed reform of procurement law.

    Key proposals include the following:

    • The consolidation of the existing procurement rules (the Public Contracts Regulations 2015, the Utilities Contracts Regulations 2016, etc) into a single set of regulations;
    • A reduction in the number of available procurement procedures to three – an open procedure for simpler, off-the-shelf procurements; a new competitive flexible procedure (similar to the current “light touch regime”); and a “limited tendering” procedure akin to the negotiated procedure without prior publication;
    • Allowing authorities to take a broader view of what can be included in the evaluation of tenders by  requiring evaluation on the basis of the “Most Advantageous Tender” rather than the Most Economically Advantageous Tender;
    • Exploring the possibility of introducing a centralised debarment list of suppliers with relevant convictions to make it easier for authorities to exclude organisations,  and broadening the range of instances in which poor performance can be taken into account;
    • Requiring authorities to implement an Open Contracting Data Standard; and
    • Reforming the processes by which procurement decisions are challenged with the aim of speeding up the review system and making it more accessible.  Proposals include investigating the use of a tribunal system to deal with low value claims; capping the level of damages available; removing the requirement to provide debrief letters to each bidder at the end of a procurement process; and removing the automatic suspension of contract awards in situations of crisis or extreme urgency.

    The Green Paper is currently the subject of public consultation, which ends on 10 March 2021. The Green Paper can be found here.

    Our recent update on the new Find a Tender Service is available here.

    For further information on this or any other aspect of procurement law, please contact:

    Áine Smith, Consultant, Procurement and Projects -

    1. See the Ministerial foreword to the Green Paper on Transforming public procurement.

    2. “Finalised” is defined in the Schedule to The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020. Essentially, a procurement is finalised upon publication of a contract award notice or upon conclusion of the relevant contract. 

    This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.

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