As a no deal Brexit edges closer there remains a level of uncertainty about the practical transition of public procurement procedures from the EU system to a UK alternative.
Reassuringly, if the UK leaves the EU without a deal on the 29th March, public procurement regulations are expected to remain largely unchanged. A Statutory Instrument (SI) was laid by the Cabinet Office in December 2018 and the new, amended regulations are currently being worked through to ensure they are ready for the UK exit date.
There will, however, be some important changes made to the current public sector procurement procedures. In this blog, Robbie Blackhurst, Managing Director of Procure North West, discusses what contracting authorities need to consider during this transitional period to ensure compliance on the 29th March.
What are the current legal obligations of contracting authorities?
Contracting authorities are governed by several Public Procurement Directives as part of the EU legal framework. These directives provide the procedures for the award of a public contract over a certain value threshold and exist to help ensure that procurements are completed with transparency and fairness across the EU.
Contracting authorities have a legal obligation to publish public procurement information via the Official Journal of the EU (OJEU) which is dedicated to European public procurement and provides daily procurement notifications via TED (Tenders Electronic Daily). Currently, contracting authorities must notify all new procurement opportunities which meet the threshold requirements via the EU Publications Office.
What will change for contracting authorities after a no-deal Brexit?
In the event of a no-deal Brexit, contracting authorities may no longer have access to the EU Publications Office and the online supplement to the Official Journal of the EU for European public procurement.
The Government will therefore amend current legislation to instead require contracting authorities to publish procurement notices through a new UK e-notification service. Contracting authorities who currently submit their notifications directly to the EU Publication Office will need to register with the new UK e-notification service once the system is live on the 29th March. Further information on how to register with the new UK system is expected to be published imminently.
What if you use a Third-Party Provider?
Third-party providers who submit notices to the EU Publications Office on behalf of the contracting authorities (known as eSenders), will also be required to use the new UK e-notification service. Many have already notified the Cabinet Office of their plans to integrate their service with the UK e-notification service, and others are currently working towards to this to ensure compliance by 29th March. It is advised that contracting authorities who use a third-party eSender, contact them directly to confirm their specific individual timescales for integration.
What will change for Suppliers?
Suppliers will still be able to access contract opportunities from the EU via the existing OJEU / TED portals, but they must also register with the new UK e-notification portal to receive details of UK public procurement opportunities. Suppliers will also still be able to access as usual any relevant domestic portals, such as Contracts Finder.
What about procurements which are already in progress on exit day?
If a contracting authority has commenced a procurement before 11pm on the 29th March and has already advertised the opportunity on OJEU, they will need to comply with the new UK regulations from that point onwards. This means any further notifications (such as a contract award for example) would need to be posted via the new UK e-notification service instead of OJEU / TED.
What action do you need to take now?
Further details are expected to be published imminently by the Government to provide additional guidelines and further clarity for contracting authorities, especially for those organisations who have an existing regulated procurement already in progress.
As we await the outcome of the Statutory Instrument which will detail these new procurement regulations, the Procure North West team are available to provide support to contracting authorities, helping to ensure that practical steps are in place to avoid unnecessary delays to procurement