Information for public authorities, businesses and other organisations on the outcome for public procurement policy in a no-deal Brexit scenario.
A package of Public Procurement Directives set out the EU legal framework for procurement by public authorities and utilities:
- The Public Contracts Directive 2014
- The Concessions Contracts Directive 2014
- The Utilities Directive 2014
These EU Directives govern procedures for the award of public contract to a supplier (a provider of works, supplies or services) when its value exceeds set financial thresholds, unless it qualifies for a specific exclusion. They require procurements to be competed transparently and fairly.
The Public Procurement Directives were implemented for England, Wales and Northern Ireland by the following regulations:
- The Public Contracts Regulations 2015
- The Concession Contracts Regulations 2016
- The Utilities Contract Regulations 2016
The Public Procurement Directives were implemented separately by the Scottish Government via the following regulations:
- The Public Contracts (Scotland) Regulations 2015
- The Concession Contracts (Scotland) 2016
- The Utilities Contracts (Scotland) Regulations 2016
Defence and security procurement is dealt with separately in The Defence and Security Public Contracts Regulations 2011 which apply to the whole of the UK.
After No Deal Brexit
If the UK leaves the EU without a deal, the public procurement regulations will remain broadly unchanged after EU exit.
The Cabinet Office laid a draft Statutory Instrument (SI) before both Houses of Parliament in December 2018. The SI was made in March 2019.
What will change for contracting authorities and entities
The current regulations will be amended to ensure they remain operable and functional on exit. The majority of the procurement regulations and in particular the different procedures available to contracting authorities and entities, will remain exactly the same. The key difference for contracting authorities would be the need to send notices to a new UK e- notification service instead of the EU Publications Office.
Contracting authorities have a legal obligation to publish public procurement information. In a no deal scenario, contracting authorities may no longer have access to the EU Publications Office and the online supplement to the Official Journal of the EU dedicated to European public procurement (Tenders Electronic Daily). Therefore, the government will be amending current legislation to instead require UK contracting authorities to publish public procurement notices to a new UK e-notification service. The new UK e-notification service will be ready for use by exit day.
The requirement to advertise in Contracts Finder, MOD Defence Contracts Online, Public Contracts Scotland, Sell2Wales and eTendersNI will remain unchanged.
What contracting authorities need to do now
Contracting authorities who are currently working with a third-party provider (for example, an ‘e-Sender’) to submit notices to the EU Publications Office should be able to continue to use them provided that the e-Sender successfully completes integration work to post notices to the new UK e-notification service.
The following e-Senders have told Cabinet Office that they intend to integrate their services with the new UK e-notification service in early 2019:
- Adam (useadam.co.uk)
- ADB (UK) Limited
- Atamis Limited
- BiP Solutions
- European Dynamics
- EU Supply
- In-Tend Ltd
- Millstream Associates (part of Proactis)
- Wax Digital
Organisations that use other e-Senders
This list will be updated as and when e-Senders confirm their timetables for testing and go- live. Contracting authorities may wish to contact their e-Senders to ask them about their plans for integrating with the new UK e-notification service.
Organisations that publish direct to OJEU/TED
Those contracting authorities who submit their notices direct to the EU Publication Office, will need to register with the new UK e-notification service.
Contracting authorities that need to publish directly to the new UK e-notification service will need a Contracts Finder Supplier Registration Service account.
Existing Contracts Finder users will be enabled to publish to the new UK e-notification service automatically and need take no action.
Contracting authorities that do not have a Contracts Finder (CF) or a Supplier Registration Service (SRS) account will need to register as a buyer and apply to post notices.
Contracting authorities that do have an SRS account, but not a CF account will need to go to CF and sign in with their SRS credentials and then apply to post notices.
What will change for businesses
Suppliers wishing to access UK contract opportunities from the UK public sector will need to access the new UK e-notification service instead of Tenders Electronic Daily (TED). Suppliers can continue to access the relevant domestic portal, such as Contracts Finder, MOD Defence Contracts Online, Public Contracts Scotland, Sell2Wales and eTendersNI.
Suppliers who wish to access contract opportunities from the EU may continue to do so via OJEU/TED. Additional information on this has been published by the EU.
Procurements in progress on exit day
Some organisations will have a regulated procurement in progress as the UK leaves the EU. Further guidance has been published in procurement policy notice (PPN) 02/19.
For procurements that have commenced before the UK leaves the EU (for example, they have been advertised in the OJEU already), contracting authorities will need to comply with the new regulations from that point, for example by posting subsequent contract award notices on the new UK eNotification service instead of OJEU TED. However, the effect of the former rules will be preserved in some circumstances to maintain fairness throughout the procurement.
Contracting authorities which commence their procurements after the UK leaves the EU will need to follow the amended regulations.