Brexit and public procurement: do any major changes come into effect on 1 January 2021 once the transition period expires?

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period expires?

Should I panic?

Firstly, no, do not panic. Notwithstanding the fact that the transition period for the UK’s complete withdrawal from the EU will expire at 23:00 on Thursday 31 December 2020, in real terms the procedures you have all been using since the introduction of the Public Contracts Regulations 2015 (PCR 2015) will remain largely the same.

The outcome of any deal negotiations may influence public procurement regulation moving forward, but as things currently stand (at the time of writing), nothing concrete has emerged from UK-EU negotiations. However, the next week or so could be interesting, so watch that particular space.

Clearly with the UK formally ceasing its relationship with the EU on New Year’s Eve, some more cosmetic things will need to change since, for instance, contracting authorities will no longer have access to the Official Journal of the European Union (OJEU) and the EU Commission will no longer be (subject to the outcome of negotiations) an arbiter of compliance in this regard. These cosmetic changes have been handled by a short piece of legislation, The Public Procurement (Amendment etc.)(EU Exit) Regulations 2020 (EU Exit Regulations), which will come into force in time for separation taking effect.

What changes are made by the EU Exit Regulations?

  • Account is taken of the fact that contracting authorities will no longer have access to OJEU – instead, in circumstances where a contract opportunity would otherwise be publishable on OJEU, contracting authorities must use the newly introduced Find a Tender Service, which is referred in the EU Exit Regulations as the ‘UK e-notification service’.
  • The financial thresholds will be set in £ (pounds sterling) by the UK government (instead of the EU Commission) and will continue to be reviewed every two calendar years by the minister for the Cabinet Office, with the first review expected to be undertaken by 31 August 2021.
  • References to ‘Europe’, ‘the Council’ and ‘the Commission’ and other EU-related terms are deleted and replaced with appropriate domestic references.

So, at least for now, not too much pain. However it is, perhaps, inevitable that in due course changes will be made to the Public Contracts Regulations 2015 as we begin to diverge from the EU over time.

Find a tender service – practical implications

PPN 08/20 sets out very clearly how this new UK e-notification service is intended to operate with effect from 23:00 on 31 December 2020. However, there are some key points that need to be factored into proposed procurements moving forward:

  • Any procurements already commenced by publishing notices on OJEU/TED prior to 23:00 on 31 December 2020 must continue through to their natural conclusion on OJEU/TED.
  • All new procurements requiring to be advertised and commenced after 23:00 on 31 December 2020, must be advertised use the new Find a Tender Service.
  • The new rules do not affect obligations to advertise on Contracts Finder in England.

If you use the services of a third-party portal service provider for undertaking your procurements, check with them to ensure their plans for integration with the Find a Tender Service are well advanced and that they will be ready for 23:00 on 31 December 2020 for the switchover. Alternatively, if you undertake your own procurements, make sure (check the links in PPN 08/20) that you are going to be registered and prepared to use the Find a Tender Service yourself. Registration is straightforward.

Please see the newly published Procurement Policy Note 10/20

Watch this space – we will alert you to any proposed changes as they arise.

If you have any questions relating to procurement generally or any of the proposed changes, please feel free to contact Mark Fitzgibbon, Jamie Foster or Robert McGough.