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Procurement in a Nutshell – How would procurement be affected by a no-deal Brexit?

With the precise details of the legislative framework that will exist post-Brexit yet to be confirmed, the likelihood that a no-deal Brexit will take place is appearing more likely than has previously been the case.

Consequently, the Cabinet Office has published guidance entitled “Accessing public sector contracts if there’s no Brexit deal” which is aimed at helping organisations understand the ramifications of such a situation.

The guidance

Currently, all procurement opportunities which fall within the scope of the EU procurement directives must be advertised on the Official Journal of the European Union (OJEU) via Tender Electronic Daily (TED).

However, the guidance paper confirms that should the EU and the UK fail to reach a Brexit deal, once the UK departs from the European Union, a replacement UK specific e-notification service will be made available. As such, the details of contracts which would previously have had to have been advertised on OJEU, will instead have to be published on this platform.

Additionally, the guidance also mentions the fact that, in the absence of an exit deal, the UK would look to accede to the World Trade Organisation Agreement on Government Procurement – an agreement which it is currently party to by virtue of its membership of the European Union.

Consequently, by independently ratifying the Government Procurement Agreement, it is hoped that larger public sector procurement opportunities will remain open to UK organisations meaning that there will be:

  • Maintained “current guaranteed access for UK businesses to global procurement opportunities”; and
  • Continued value for money for public sector buyers by promoting competition among suppliers.

What are the implications?

Should a no-deal situation arise, there is no doubt that there will be a number of significant changes to the procurement regime that will affect UK organisations – the first of which being that Contracting Authorities would need to ensure that their contract notices are published on the UK e-notification service rather than via OJEU / TED.

In the same vein, suppliers looking to enter into contracts with public sector organisations will need to review and monitor this new procurement portal in addition to its previous counterparts.

Why is this important?

In the event that the UK does depart from the EU without a Brexit deal, it is vital that both Contracting Authorities and tenderers are prepared for the practical implications that this will have on procurement in the UK. Organisations should look to keep abreast with any developments as and when they arise and should consider having plans in place to ensure that they are capable of adapting to any developments that may occur.

How can I find out more?

If you have any queries on the issues raised or on any aspect of procurement, please contact us via our procurement hotline on 0191 204 4464.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

This page may contain links that direct you to third party websites. We have no control over and are not responsible for the content, use by you or availability of those third party websites, for any products or services you buy through those sites or for the treatment of any personal information you provide to the third party.

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