Procurement in a nutshell – European Commission paper on public procurement
22nd September, 2017
This week's update provides an overview of the European Commission's recently published Public Procurement position paper.
This paper helps to outline the possible future position of the public procurement procedure when the UK leaves the EU, as well as seeking to address the various concerns of Contracting Authorities and other interested parties.
Background to the paper
The UK’s departure from the European Union has raised a number of questions over the potential implications on the public procurement regime and the position of parties already involved in public procurement.
This uncertainty has given rise to a number of key concerns including: supply chain disruption, changes to contracts, changes to the identity of suppliers throughout the chain and also price increases for products, services and building materials.
The paper details the three key principles which the Commission believes should apply once the UK departs from the EU. These are:
Administration: EU administrative procedures should continue to be applied for on-going European procurement procedures and framework agreements at the date of withdrawal.
Therefore, any contracts started before withdrawal date will be carried out until their completion in line with EU administrative procedures. The Commission highlights that this is a fundamental principle as well as stating that any withdrawal agreement which should guarantee that public procurement projects are completed in accordance with current policies.
Non-discrimination: UK Contracting Authorities must continue to comply with the principle of non-discrimination in respect of tenderers and contractors following the UK’s departure from the EU in respect of those procurement procedures and framework agreements referred to in the first principle.
Review procedures and legal remedies: The paper sets out that the existing review procedures and legal remedies should remain available to those procurement procedures and framework agreements which continue after the date of withdrawal.
Further to clarifying the on-going procurement principles, the paper highlights that Contracting Authorities from the UK who are currently entitled to use “e-Certis”, the European information system for mapping certificates issued as evidence in public procurement procedures, will still be entitled to do so after the UK’s withdrawal date in relation to their ongoing European procurement procedures.
This will allow contracting authorities in the UK to still be able to have access to the same information as other bidders within the EU, so bidders will not have to other arrangements to provide evidence.
Why is this important?
On the basis of this position paper, it appears that when the UK leaves the EU, any ongoing public procurement contracts will still be protected until completion – meaning that interested parties are less likely to be subject to Brexit-associated risk. Accordingly, those involved should feel somewhat reassured that their interests will remain secure at the departure date.
As such, the paper has gone some way to providing a degree of certainty to interested parties and has somewhat redressed what was a previously unclear aspect of law.
However, going forward it remains important that public organisations attempt to remain au fait with any developments to procurement legislation. The Government is yet to release any of its plans for procurement post-Brexit and it is clear that ultimately the situation will depend on the final exit deal agreed between the UK and the EU.
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.
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