The PPE procurement headlines have, once again, brought how public money is spent into the limelight.
As negotiations between the EU and UK on a future trade and security relationship reach (what is expected to be) the end game, what do we know for certain about the future of public procurement regulation in the UK?
* Unless procurement falls into any new free trade agreement (and on that, see below), the existing rules will continue to apply - albeit minus the Treaty on the Functioning of the EU (TFEU) principles and as amended by the Public Contracts (Amendment etc) Regulations 2020 - from 1 January 2021.
*Assuming no wider deal on procurement, UK suppliers will be able to continue to bid, with more limited rights, into EU procurements as the UK has acceded to the WTO Government Procurement Agreement (GPA) in its own right on 7 October 2020. The GPA does not cover below threshold contracts, procurement by utilities or defence, or concession contracts.
*Existing procurements and frameworks are 'banked' under the existing rules and EU law principles, in accordance with the Withdrawal Agreement. As this includes frameworks and their call off contracts, there will be a 'two tier' system for many years.
*Existing remedies rules (including automatic suspension, cancellation/ineffectiveness, and damages/fines) will continue to apply.
*Find a Tender will replace Tenders Electronic Daily (OJEU) for UK procurements started after 1 January 2021.
*A Green Paper is expected on public procurement shortly. The contents of this will depend on the extent to which procurement is covered (or not) in any Level Playing Field (LPF) obligations in the future trade and security treaty(ies). Until recently, the UK had wanted procurement to be outside of the scope of the LPF. It may be that is traded for increased flexibility for the UK, for example, in relation to subsidy control. We should know more soon.
Clyde & Co will be running its 'unmissable' 2nd annual Procurement Crystal Ball event with Achilles and Professor Sue Arrowsmith in January 2021. For more information or advice on any of the issues raised in this post, please contact David Hansom, Partner, on firstname.lastname@example.org or your usual contact at Clyde & Co.
From 1 January 2021 a new e-notification service called Find a Tender will be used to post and view public sector procurement notices.