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What Does Brexit Mean for UK Public Procurement?

OJECSo, we voted to go. No one knows whether the parting will have sweet or sorrowful results; but we can be sure that there will be plenty of work for lawyers and civil servants to untangle the complex relationships between EU and UK law.

One area close to my heart is the Public Contract Regulations, which set the rules that public authorities follow in awarding contracts for supplier of goods and services. As most of my work involves either bidding for government contracts or advising departments on how to select suppliers, I have a strong interest in the subject.

Public Contracts What?

The Public Contracts Regulations are part of UK law, passed by our Parliament. However, they are an implementation of the EU Public Contract Directive. You can find a useful summary of this here.

That’s how almost all EU law works – a Directive is passed by the EU, and members states then have to implement the directive into their own national laws within a certain timetable.

So, what does a Brexit vote mean for the Public Contracts Regulations 2015 (see herefor a brief summary of what the PCR meant)? Is there a great opportunity to strip away miles of red tape to unleash a new wave of innovation and job creation?

So, What Has The EU Ever Done For Us?

Lets just review some of the key rules to see what, as Monty Python would say, the EU has done for us.

The main rules that public authorities have to follow are as follows:

  • publish contract notices that are accessible to the market (currently, in the European Journal for contracts over c.£120k and in the UK Contracts Finder for contracts over £10k)
  • set fair evaluation criteria (select based on relevant capability, quality of solution and price)
  • follow one of the procurement procedures described in the regulations (open tender, pre-qualification followed by tender, competitive dialogue)
  • apply the Alcatel Standstill Period before awarding contracts (10 days to give losing bidders opportunity to challenge if they think the award is unfair)
  • not discriminate against companies from other EU states in awarding contracts (except for a small number of special reasons such as national security)

If we started from scratch now, which of these rules would we want to do away with?

Well, I guess we might tweak it a bit – we might decide note to publish in the European Journal. Though to be honest, publishing contract notices is a pretty good thing and we probably do want European companies to be able to bid for work where they have something valuable to offer.

I don’t think we are likely to change the need for fairness and good process in awarding contracts. We might simplify the competitive dialogue rules a bit (there are a few too many of them). The Alcatel Standstill period may have been a piece of case law created in Luxembourg, but I don’t think that anyone would want to change the principle.

In practice, the vast majority of the Public Contracts Regulations represent common sense, codified. So, whilst we might tinker round the edges, I think that the number of real changes will be minimal.

Keep Calm and Carry On

In the short term of course, absolutely nothing will change at all, at least for the next 2 years. UK law is still UK law, and leaving the EU will not remove any of the existing obligations. Tomorrow is going to be pretty much identical today.

Though it is probably going to rain. We are still in Britain after all.