By 1 January 2021, the Brexit transition period will have come to an end; whilst there may be a lot of uncertainty moving forward into the New Year, the UK government are now outlining the changes that will occur regarding the UK's public procurement process.
Current UK procurement law
Public procurement in the UK is currently governed by EU Procurement Directives which are implemented into UK law by the following Regulations;
Public Contracts Regulations 2015
Utilities Contracts Regulations 2016
Concession Contracts Regulations 2016
Principles of transparency, equality of treatment, mutual recognition and proportionality found in the Treaty on the Functioning of the European Union also affect how public procurement is carried out in the UK. These laws encourage free, open competition and getting value for money.
Contracting authorities have obligations under the current Regulations, to publish certain notices in relation to public procurements, if the value of the contract falls above specified thresholds. These thresholds safeguard competition and are subject to change. If a contract value exceeds these thresholds, notices must be published on the Official Journal of the European Union's Tenders Electronic Daily (OJEU/TED).
New UK procurement legislation
On 19 November 2020, the Public Procurement (Amendment etc.) (EU Exit) Regulations 2020, were signed into law. These Regulations will take effect at the end of the transition period and amend the current 2015 and 2016 Regulations, however, these amendments are more procedural in nature and do not affect the overall procurement policies found in the current 2015 and 2016 Regulations. The 2020 Regulations will remove references to the OJEU and confirm the European Commissioner will no longer re-value the financial thresholds, this will now be carried out by the UK Minister for the Cabinet Office.
Post transition period
Any procurements commenced on the OJEU before the end of the transition period, must continue to completion with all subsequent notices in relation to that contract, continuing to be published on this system.
At the end of the Brexit transition period (23:00 on 31 December 2020) a new system, Find a Tender, will go live, which will be used in place of the OJEU/TED to advertise any new procurement processes commenced after 31 December 2020 in the UK. The requirement to exceed a certain contract value threshold in order for notices to be published on this new system will still apply, however, these values will be converted into sterling.
Find aTender will be free to use and will continue to work alongside existing procurement portals such as;
MOD Defence Contracts Online
Public Contracts Scotland
However any public contracts that are based in the EU will continue to be advertised on the OJEU/TED and local business wishing to participate in these processes should continue to monitor OJEU/TED for these opportunities.
Implications of changes on e-Senders
An e-Sender is a third party provider used to submit notices on a contracting authority's behalf. Examples of e-Senders include; European Dynamics, Proactis and Atamis Limited. If contracting authorities use an e-Sender to publish tender notices, it is important to note that not all e-Senders will be in a position to move to the new system by the end of this year. It will be the contracting authority's responsibility to ensure that their e-Sender is able to function on the new Find a Tender system.
Given the ever-evolving landscape caused by Brexit, it is important for all contracting authorities, businesses and any other organisations to be aware of these changes. The government has already advised that new guidance may be introduced in the closing weeks of this year and indeed following the end of the transition period.
Whilst there will undoubtedly be issues arising in the near future in attempt to adapt to post Brexit life, it will be important maintain and ensure clarity when it comes to public procurement contracts.
For more information please contact Micaela Diver, Litigation and Dispute Resolution Partner at A&L Goodbody's Belfast office.