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On 14 November 2018, the European Commission and UK negotiators reached an accord on the full scope of the Withdrawal Agreement and constructed an outline for the political declaration on the future of the relationship between the EU and the UK.
The coverage of the draft treaty agreement presented to parliament has been extensive; most trade journals have already provided comprehensive coverage on the most salient details for each industry.
As DeNove specialises in public sector procurement, we decided to shed some light on the meaning of the recent draft treaty and how it will impact public sector procurement.
The section of the draft treaty that addresses public sector procurement can be found on page pages 132 – 136 of the draft treaty. It is not the most accessible of documents and so we have provided a more succinct explanation of what to expect below.
First and foremost, there is to be a transition period, which will conclude on the 31st December 2020. This decision takes into account the UK’s initial request for a transition period of approximately two years. The dates also coincide with the end of the current long-term EU budget (the Multiannual Financial Framework 2014-2020).
The Treaty and associated EU Withdrawal Agreement provides legal certainty on public procurement procedures. During the transition period, the current EU procurement regulations will prevail. This situation will then continue for any ‘in-flight’ procurements. Effectively, if a procurement has commenced (i.e. a contract notice has been issued) then it is our understanding that the procurement will continue to run in accordance with The Public Contracts Regulations (2015) and EU law. Put simply, procurements will continue to exist under the same procedural and substantive policies as the ones that were in effect at the time of their commencement.
We will write more about the likely situation post the transition period once the situation becomes clearer, but in the meantime if you have any questions regarding how this will impact your business then please feel free to give us a call.
On the 13/09/2018, the Department for Exiting the EU published a technical notice entitled ‘Accessing Public Sector Contracts if there’s No Brexit Deal’. This Department has been publishing a series of technical notices to help businesses, citizens and the wider government understand the implications of a ‘no deal’ outcome in March 2019.
The possibility of a ‘no deal’ scenario in March 2019 has been a cause for great concern for many businesses. While a ‘no deal’ exit will certainly have a major impact on many businesses, the systems and processes for accessing public sector contracts will remain largely the same.
Below, we have outlined what accessing public sector contracts is likely to entail in the event of a ‘no deal’ outcome. We hope, and suspect, that this will put our customers’ minds at ease (regarding this point at least).
In the event of a ‘no deal’ outcome in March 2019, the government has stated that a replacement UK-specific e-notification service will be made available. For procuring authorities, this may necessitate a steep learning curve and its introduction may be complicated.
However, for the average British supplier to the public sector, very little will change and what minor differences there are can be overcome via simple workarounds.
Currently, the majority of all English public sector contracts valued over £10,000 for Central Contracting Authorities and £25,000 for Sub Central Contracting Authorities and NHS Trusts are published on Contracts Finder. This will not change. Suppliers looking for smaller sized contracts in the UK will continue to be able to use Contracts Finder (for procurements in England), Public Contracts Scotland (for procurements in Scotland), Sell2Wales (for procurements in Wales) and eTendersNI (for procurements in Northern Ireland).
Effectively, all UK contracts will continue to be published and will be available to anybody seeking access, entirely free of charge.
If British suppliers wish to sell their services internationally, then they will continue to be able to use Tenders Electronic Daily (TED) to do so. It is possible that English contracts will no longer be published on TED. If this is the case, the simple solution for suppliers is to ensure that they are correctly registered on Contracts Finder so that they can use that platform for English tenders. For those wishing to access European tenders, we would recommend setting up a search on TED, as per usual. It is worth noting that both TED and Contracts Finder are free of charge.
In the event that we do fall out of the EU, the technical notice confirms that the UK aims to accede to the WTO Agreement on Government Procurement (GPA). The UK currently participates in the GPA by virtue of its EU membership. Readers who currently use TED will notice that procurements that are applicable to the WTO rules and regulations are already signposted on all Tender Europa procurements. Each tender notice will feature a question on GPA coverage and will provide a clear ‘Yes’ or ‘No’ answer. In the vast majority of cases, the answer is ‘Yes’, which means that the impact of acceding to the WTO agreement will be minimal for most companies seeking to access public sector tenders.
What may change, in the long-term, concerns the publishing in English on TED. Currently, TED publishes international tender notices with a full tender notice in the language of the contracting body’s country with a briefer summary in all other official EU languages. Once we leave the EU the TED team may no longer provide an English translation.
We fully appreciate that a ‘no deal’ outcome is likely to have a substantial impact on many areas of our customers’ businesses. However, with respect to the technical notice published by the Department for Exiting the EU, we would like to assure readers that there is little cause for concern regarding accessing public sector contracts post-Brexit.