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Brexit: Public Procurement

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24/06/2016

What will be the impact be on procurement law? The short answer is we don’t know as there will be decisions to be taken, in due course as exit negotiations and strategies evolve. However, for the time being the three sets of procurement Regulations; Public, Utilities and Concessions, that implement the EU Procurement Directives in England Wales and Northern Ireland, remain in force. Parallel Regulations apply in Scotland.

If the solution which emerges is that we are to be a member of the European Economic Area (EEA), then the UK will, have to continue to abide by EU procurement law, as do those countries that currently are in EFTA rather than the EU. So, the Regulations would stay.

If we totally go it alone then, in principle, the Regulations could be repealed. But that does not necessarily mean that public procurement would be unregulated. The United Kingdom, by virtue of EU membership, is also a signatory to the World Trade Organisation’s Agreement on Government Procurement (GPA). It is likely to want to retain this status so would be required to have legislation covering procedural fairness, transparency and domestic review. Even if the UK rejected the GPA membership, which seems unlikely as most of the countries we would want to trade with are members or observers, then most public bodies have long had internal rules to regulate their procurement to ensure value for money and propriety, so some type of regulation would likely exist. Indeed, many will stay with rules similar to those used now as they are familiar with them. In England, the Government has already legislated to regulate procurement not caught by the EU rules[1] so there is clearly precedent for further statute to create a UK regime. In Scotland Wales and Northern Ireland the respective governments may impose their own rules.  Thus outside the European Union, the United Kingdom could have four, or more, different sets of rules which businesses supplying the public sector would need to take into account as well as case law emanating either from procurement legislation or judicial review.

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[1] Public Contracts Regulations 2015 ( Part 4) ;National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013/500

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