As at the time of writing, Brexit has been delayed until 12 April 19 at the earliest (noting the condition the EU imposed that the deal has to be passed by Parliament, which if passed could bring a delay until 22 May 19).
There are a number of options now on the table depending on how the Prime Minister and Parliament handle the situation. This leaves the Public Sector procurement and business development communities still without detailed knowledge about future procurement arrangements for the Public Sector.
This summary outlines Public Sector procurement in the event of one of two scenarios. It is based on an update by HMG on 1 Feb 19:
• Leave with a Deal. The working assumption is that procurement arrangements will still be in existence in the current draft deal.
• Leave without an (EU) Deal. The working assumption is that procurement arrangements will be the trading framework of the WTO. This note is focused on UK Public Procurement arrangements, so it does not cover the WTO implications.
Leave with a Deal.
If the UK leaves the EU with a deal, the public procurement regulations will remain broadly unchanged during the Transition Period (also called the Implementation Period) to 31 Dec 20 (there is a possibility of an extension to the Transition Period), subject to any reforms during the period. Notices for UK contract opportunities will still be accessed on the Ofﬁcial Journal of the European Union (OJEU) Tenders Electronic Daily (TED).
Leave without an (EU) Deal.
Procurement Regulations. If the UK leaves the EU without a deal, the public procurement regulations themselves will remain broadly unchanged after the EU exit at 2300 hours on the date conﬁrmed (be it 12 April or 22 May), but the access arrangements will change.
Access for both contracting authorities and suppliers will be via the new UK eNotiﬁcation Service and not the OJEU/TED. The new UK speciﬁc e-Notiﬁcation Service will replace OJEU/TED and will be ready when the UK leaves the EU.
The current regulations will be amended to ensure they remain operable and functional on exit. The majority of the procurement regulations and in particular the different procedures available to contracting authorities will remain the same. The key difference for contracting authorities would be the need to send notices to a new UK e-Notiﬁcation Service instead of the EU Publications Ofﬁce. Contracting authorities have a legal obligation to publish public procurement information. They need to register in ‘early 2019’ in order to publish their notices (noting that we are nearly into Q2). The Government states (on 1 Feb 19) that it will be amending current legislation to require UK contracting authorities to publish public procurement notices to the new UK e-Notiﬁcation Service, which will be ready for use by Exit Day.
The requirement to advertise in Contracts Finder, MOD Defence Contracts Online, Public Contracts Scotland, Sell2Wales and eTendersNI will remain unchanged.
Suppliers wishing to access UK contract opportunities from the UK Public Sector will need to access the new UK e-Notiﬁcation Service instead of OJEU/TED.
- Suppliers can continue to access the relevant domestic portal, such as Contracts Finder, MOD Defence Contracts Online, Public Contracts Scotland, Sell2Wales, and eTendersNI.
- Suppliers who wish to access contract opportunities from the EU may continue to do so via OJEU/TED.
From a supplier’s perspective, we are still unsighted as to how the mechanism for the UK e-Notiﬁcation Service will be accessed or operated. HMG states that it will be ‘available from Exit Day’ and ‘will publish more information in a series of guidance notes on GOV.UK nearer to the time.
As a Contracts Advance customer, on your behalf we:
- Are monitoring daily HMG’s Brexit related sites and will send you any relevant update.
- Have sent a Freedom of Information Request to BEIS posing the questions above.
We doubt it will elicit the answers we seek soon, but it will demonstrate industry uncertainty about the lack of information regarding the UK e-Notiﬁcation Service at such a late stage.
Whatever the outcome of Brexit we will ensure you receive comprehensive coverage across all public sector portals.
In the meantime, we will be monitoring the situation as we are fully aware it is a time consuming one, keeping our Contracts Advance clients proactively up to date with developments.