Provisional Public Procurement Common Framework between UK government and devolved administrations published
23 March 2021
On 23 March 2021, the Cabinet Office published the Public Procurement Common Framework: Provisional Framework Agreement (Common Framework).
The Common Framework provides a non-statutory framework which aims to ensure continued co-operation in matters concerning public procurement between the UK government and the Scottish government, the Welsh government and the Northern Ireland Executive (referred to collectively as the devolved administrations). It requires each party to work consistently with the Frameworks Principles, adopted by the Joint Ministerial Committee on EU Negotiations (JMC(EN)) in its communiqué of October 2017 and which have underpinned the repatriation of powers from the EU to the UK resulting from Brexit (see Legal update, Joint Ministerial Committee on EU Negotiations announces agreed principles for repatriation of powers to devolved administrations post-Brexit).
The Common Framework does not prevent any party from developing their own procurement policy and provides the “vehicle” for discussing such proposals (including any proposals to legislate) in accordance with the Frameworks Principles. Where a party wishes to substantively diverge in a way that has an impact on another party, a “mutually acceptable approach” should be explored. The Common Framework establishes a formal resolution procedure, which can include government engagement and resolution according to the Memorandum of Understanding between the UK government and the devolved administrations of October 2013.
The Common Framework will be reviewed every three years or where there is a “significant issue”. It can also be amended where the parties unanimously agree.
The Common Framework agreement has been presented to Parliament and will be signed by the parties after it has been agreed by the JMC(EN). It will not be given statutory footing.
At the end of the UK-EU transition period on 31 December 2020, procurement law ceased to be governed at EU level. As a “returning” power, the default position under the European Union (Withdrawal) Act 2018 is that the devolved authorities and legislatures cannot legislate incompatibly with retained EU law (see Practice note, Devolution under the European Union (Withdrawal) Act 2018: Changes to devolved legislative and executive competence). The UK government has identified subject areas where a “particular level of co-operation is required” across the UK, which may mean minimising regulatory divergence; common frameworks such as this one may facilitate such an arrangement.