Brexit and Public Procurement

Companies tendering for public contracts in the UK and Ireland after 29 March 2019 (or such later date if extended) will need to be aware of the changes that Brexit will bring for public procurement. While the public procurement landscape in the UK will not change dramatically in the short term, there will be some changes in practice depending on whether there is a deal or no deal.

No Deal

  • UK public bodies and utilities will no longer be legally obliged to advertise in the Official Journal of the European Union (accessible via tenders electronic daily)  but will instead be required to advertise tender opportunities on a new UK e-notification service 
  • UK public bodies will no longer be required to reject an abnormally low tender on the basis that the tenderer has obtained State Aid and is unable to prove that the aid in question was compatible with the internal market
  • The Minister for the Cabinet Office will take over responsibility for changes to Common Procurement Vocabulary codes and for setting the financial thresholds for the applicability of UK procurement rules
  • UK companies tendering in Ireland and throughout the EU will have the same status as companies based in third countries with whom the EU does not have any reciprocal procurement agreement - the UK has applied to join the WTO's Government Procurement Agreement and accession to the GPA (which is not anticipated for several months) will give UK companies rights under EU procurement rules
  • Special rules under the Utilities Directive permit utilities to reject any tender submitted for the award of a supply contract (which includes software used in telecoms network equipment) if the proportion of the products originating in third countries with which the EU does not have a reciprocal procurement agreement exceeds 50% of the total value of the products constituting the tender

Withdrawal Agreement

  • If there is a deal on the basis of the Withdrawal Agreement, EU law would continue to apply in the UK until the end of the transition period (31 December 2020)
  • Procurement procedures in the UK would therefore be essentially the same until the end of the transition period 
  • For any procurement procedures ongoing at the end of the transition period, the existing EU procurement rules would apply up to award

Irish Procurement Procedures and Brexit

The Office of Government Procurement has published an Information Note on Brexit and Public Procurement. Under the Note, the OGP notes that the current position is that there is no change to public procurement rules and suppliers from the UK must be treated in the same manner as all potential suppliers from the EU. The OGP has recommended that tender and contract documents should take account of the possibility of new taxes or tariffs and who is liable. In practice, Irish public bodies are building in "Brexit clauses" into their contracts which transfer the burden and risk of Brexit to contractors.  

For more information in relation to this topic, please contact Anna-Marie Curran, Partner, or any member of A&L Goodbody's EU, Competition & Procurement team.

Date published: 13 February 2019