Public Procurement from 1 January 2021

We have been asked what the practical impact is on day-to-day procurement processes following the expiry of the Brexit transition period on 31 December 2020 and the EU-UK Trade and Cooperation Agreement (TCA).

The short answer is that the single biggest change is the requirement on contracting authorities to use the UK’s Find a Tender Service (FTS) to publish notices which would previously have been sent to and published in the Official Journal of the European Union (OJEU). The circumstances when such notices need to be despatched and published and the types of notices remain the same, with some minor tweaks in content.

There are other changes to the procurement legal framework as a consequence of the end of the transition period and the TCA deal, but most are likely to be of far less immediate impact on the conduct of procurement. The aim has been to maintain a “steady state”, with minimal changes to the procurement legal framework, at least in the short term. This is because in the medium to long term there will be a potentially radical overhaul of the procurement framework, in both practical and legal terms. The proposed changes are currently the subject of public consultation on the procurement Green Paper, “Transforming Public Procurement”.

Changes to the Public Contracts Regulations 2015

The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 SI 1319 (“PP Amendment Regulations 2020”) amend the Public Contracts Regulations 2015 (“PCR”), Concession Contracts Regulations 2016 and Utilities Contracts Regulations 2016, as well as other legislation requiring incidental changes, including the Public Services (Social Value) Act 2012. The focus of this note is on the PCR.

Most of the provisions in the PCR remain the same. The PP Amendment Regulations 2020 bring the PCR into line with the legal position following expiry of the Brexit transition period and the agreement of the TCA[1]. We note a few examples below, to give you a flavour of many of the changes:

• there has been a partial purge of EU-specific references and provisions; with references to advertising in the OJEU removed and replaced with references to the “UK e-notification service” – Find a Tender Service – and renaming of the European Single Procurement Document (ESPD) as the Single Procurement Document (SPD)
• requirements to submit reports to the European Commission on request now refer to submission to the Cabinet Office (where relevant)
• the ground for mandatory exclusion for fraud relating to EU funds (PCR 57(1)(e)) has been deleted
• references to professional or trade registers in Member States have been removed (for example, PCR 58(5))
• grounds for rejection of Abnormally Low Tenders in the case of unlawful State Aid have been removed (PCR 69(6)(7)) to reflect the repeal of EU State Aid law and replacement with a new subsidy control regime in the UK.

Amendments will not apply to procurements already under way

The PP Amendment Regulations 2020 include provisions (“saving provisions”) covering situations where procurements were already under way, but not yet finalised, on  Implementation Period (IP) completion day (11pm on 31 December 2020).

Put simply, where a procurement procedure was launched but not finalised at IP completion day, the PCR will apply as if unamended by the PP Amendment Regulations 2020 or by subsequent amendments to the PCR.  The award of contracts/call-offs under framework agreements already in place on IP completion day are also unaffected by the amending provisions.

We have provided more detail on these saving provisions in an earlier article.

Useful reference documents

PPN 08/20 Introduction of Find a Tender service (FTS) 

Our article on the Public Procurement Green Paper

We will keep you posted on further developments.

[1]   The EU-UK Trade & Cooperation Agreement (TCA) is in operation although agreement is provisional to 28 February 2021 pending the formal process at EU level.