Local authorities should be wary of reserving contracts for local suppliers, as recommended by Procurement Policy Note (PPN) 11/20. Other contracting authorities may want to maximise their use of this
You can read the paper here.
It is drafted on the basis of a “no deal” approach and assumes no access to European procurement markets for UK contractors. This clearly depends on the terms of the Brexit negotiations, the outcome of which it is too early to predict.
The approach proposed is based on transitional arrangements that have typically applied when new EU procurement Directives have been brought in.
In particular, it proposes that UK contracting authorities should have continued access to OJEU only for procurement procedures begun pre-Brexit and call-offs from framework agreements procured pre-Brexit. There are a number of problems with this approach:
- For projects supported by European funds, grant conditions often require all procurements to be via an OJEU process. Recipients of these grants will need to submit OJEU notices for these procurements before Brexit. It will be crucial to get these procurements right, since the option of discontinuing a flawed procurement process and starting again will no longer be available post Brexit;
- A number of procurement “tools” (such as the ability to use the e-certis database for selection documentation) that help UK companies tender for European public contracts will no longer be available;
- The UK will need to make alternative arrangements to replace OJEU advertising for new procurements begun on the day after Brexit, given that the Public Contracts Regulations 2015 (which require an “OJEU process”) will be preserved in force by the Great Repeal Act (now rebadged as the EU (Withdrawal) Act); and
- The Commission is proposing that all of the current European legal remedies will continue to apply to procurements begun pre-Brexit. This will require the agreement of the UK Government, which seems currently to be saying that the European Court should have no role post Brexit. It will also mean giving EU contractors access to the UK courts to challenge UK procurements begun and, more controversially, call offs from UK frameworks procured, pre-Brexit.
The Commission’s approach means that the EU procurement rules will no longer apply to contracts procured pre-Brexit once they have been signed and a contract award notice published in relation to them. The Commission is proposing that the cut-off point for the application of those rules will be when the contract is “finalised” i.e. when the contract award notice is published or the procurement is discontinued. However, “substantial variations” to those contracts will still be able to be challenged in the UK courts because of the wording of Regulation 72 of the Public Contracts Regulations 2015, which prohibits variations which are not within the scope of that Regulation.
A lot more work will be needed to arrive at a practical and workable position in relation to EU procurement post Brexit. The Commission’s proposals are their opening gambit in these negotiations.
For more information
Please contact Andrew Millross.
Most housing practitioners have perhaps been waiting for this news since the latest lockdown was announced by the Prime Minister on 4 January 2021.
Climate change and biodiversity is an area where significantly faster changes are needed on a global and local basis.
Chris Lloyd Smith, Adrian Leonard and Lisa Whitehouse discuss the planning opportunities available to owners of businesses and how to prepare for unforeseen events.
In their 3rd podcast of the series, Chris Lloyd-Smith and Maria Ramon discuss a number of problems with and difficulties that can arise in mediation and the mechanisms they use to overcome them.
Our previous round-up began by sharing the news that two vaccines had shown very promising test results. Here we are, not even a month later, and the first vaccines have already been administered!
The Covid-19 crisis has demonstrated that there is great resilience and innovation in the housing sector across Greater Manchester, it has also brought shortfalls and other priorities sharply into foc
For part 5 in this series of short podcasts, Chris Lloyd-Smith interviews associate Kadie Bennett on how she has been coping during these unprecedented times.
The first report of Donna Ockenden and her team into the review of maternity services at The Shrewsbury and Telford Hospital NHS Trust has been published today.
The Family Solutions Group (FSG) recommends a shift away from adversarial family proceedings, to a child-centred, holistic approach to family separation.
To receive invitations to our events, as well as information and articles on legal issues and sector developments that are of interest to you, please sign up to Newsroom.