UK Public Procurement – What Happens After Brexit?

We are covering the public procurement issues connected with Brexit more fully on our Public Spend Forum Europe  site, so if you are into all the details, from potential negotiation strategies for the UK to the likely change in procurement regulations, do take a look at PSFE on a regular basis.

But we wanted to draw our SM audience’s attention to a new document which is going to be quoted a lot over the coming months and years. It is a somewhat dry-sounding, but very important and pretty readable, policy paper written for the European Parliament titled Consequences of Brexit in the area of  public procurement – and you can get it here.

It was highlighted here on the excellent Pinsent Masons Out-Law.com website, and their article gives a good summary of the document in question. When we read the summary, we thought it all sounded somewhat familiar, and sure enough, on looking up the document itself, we discovered that the author is Professor Sue Arrowsmith from the University of Nottingham, a world expert in public procurement law. We heard her speak recently at the Leicester Law School event and wrote about that here; unsurprisingly, much of her presentation that day accords closely with the new report.

Arrowsmith suggests four potential future models for how UK public procurement could work. They form a spectrum from a model based on the European Economic Area (EEA) agreement, currently used by European Free Trade association (EFTA) states such as Norway and Switzerland, to one based on the GPA (the World Trade Organisation “agreement on government procurement”).

The other options in between are an 'EEA minus' model similar to that used in the DCFTAs (deep and comprehensive free trade agreements) between the EU and some neighbouring countries like Georgia and Moldova, and a 'GPA plus' approach that is being proposed in the EU trade negotiations with the US.

The paper also touches on “the issues that might need addressing in relation to public procurement in a withdrawal agreement (or, in the event of a provision in a withdrawal agreement for interim application of the EU procurement regime following Brexit, in any final EU -UK agreement that involves a later move away from the EU regime)”.

Some of the interesting issues across the spectrum of options include whether the UK would still use pan-EU advertising routes (“OJEU”) and what level of regulations might apply to sub-threshold procurement. Remedies, standstill periods and other issues around challenge might also look quite different under various scenarios. But it seems unlikely that the UK will be free to rip up all current regulations and start again (assuming it wants to trade with partners) – and indeed, it is unlikely that the country would see that as a major priority at this time.

Anyway, if you are interested , do take a look at the Out-law article and the paper – and remember to check out Public Spend Forum for more related news.

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