Public Procurement post-Brexit

Public Procurement post-Brexit : Michelmores' Senior Associate, Michael Papadakis comments on the European Commission's recent position paper

The European Commission (the EC) published a position paper on Public procurement which contains the main principles of the European Union (EU) position in this area and provides for some important transitional arrangements to be discussed and agreed with the UK as part of the Art.50 TFEU (Treaty on the Functioning of the European Union) negotiation process.

The paper seeks to provide clarity on procurement procedures which commenced (i.e. a call for tenders was published in the Official Journal of the European Union {OJEU}) prior to the withdrawal of the UK from the EU/single market and continue to complete (i.e. publication of Contract Award Notice in the OJEU) thereafter.

The EC proposes the following general principles to apply from the day after the UK's withdrawal from the EU:

  1. The following procurement procedures should continue to be carried out, until their completion, under the relevant procurement Regulations applicable at the moment of their commencement in accordance with relevant EU law:

a. ongoing public procurement procedures commenced by UK contracting authorities;

b. frameworks already concluded, including contracts awarded under frameworks or awards of contracts (e.g. mini competitions) commenced under the frameworks prior to UK's withdrawal.

  1. The non-discrimination principle should be complied with by the UK or EU27 authorities, in relation to the procurement procedures referred to in point (1).
  2. Review procedures and legal remedies in relation to point (1) procurement procedures should continue to be carried out in accordance with the relevant provisions of EU law applicable on the withdrawal date.

Finally, UK Contracting authorities entitled to use eCertis (a tool used to identify and compare certificates requested in public procurement procedures across the EU) will be entitled to use it after the withdrawal date in procurement procedures in point (1) above. The EU Publications Office will continue to publish Contract Award Notices by UK Authorities procurement procedures point (1) above.

We now expect to hear from the UK Government on their proposed position for transitional arrangements. The UK position will inevitably be influenced by the type of relationship which they wish to agree with the EU, including the role of the EU courts.  Theresa May's speech in Florence later this week may prove to be a watershed in this regard.