A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
We now know what the short-term holds for public procurement at the end of the Brexit transitional period.
Continuation of the Public Contracts Regulations 2015
The public procurement regime, as set out in the Public Contracts Regulations 2015 (and the associated concessions, utilities and defence procurement regulations), will continue mostly unchanged after the Brexit “Interim Period Completion Day” (31 December 2020).
The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 make the minimum changes necessary to maintain the Public Contracts Regulations 2015 in force, substituting references to EU institutions and procurement documents to their (sometimes new) UK equivalents.
The one major change is that the Official Journal of the European Union (OJEU) notices will be replaced by FaTS notices. In late 2019, the Government set up the “UK wide procurement e-notification service” as the “no-deal Brexit” replacement for OJEU. This has now been revived under its original name “Find a Tender Service”.
Details of FaTS are set out in Procurement Policy Note (PPN) 08/20, published at the end of November. There’s also a list of FAQs. Some procurement portals are already geared up to send procurement notices to FaTS. A list of these “e-senders” who are set up for this, or are in the process of doing so, is available on a click-through from the PPN.
Procurements over the end of the Brexit transition period
PPN 08/20 also asks contracting authorities to post any OJEU notices they submit to OJEU (from now onwards) on FaTS as well as OJEU, but this is optional.
For procurements started (by an OJEU notice or PIN) before 31 December 2020, contracting authorities must continue to send contract award notices to OJEU.
For the longer term, the Government has teased procurement practitioners with a statement in its National Infrastructure Strategy that “in due course” (whenever that means) it will issue a green paper proposing a “radical reform of the procurement rules”.
The Strategy states that these reforms will include simplification of the procurement procedures, more openness about procurement and contract data (which may not be universally welcomed by suppliers) and both improved access for new suppliers and greater competition under framework agreements.
Any changes will need to be within the limits allowed by the World Trade Organisation Government Procurement Agreement (“GPA”), which the Government is in the process of signing the UK up to after the end of the Brexit transitional period. Some of the current procurement rules (e.g. the tendering thresholds) are derived from the GPA, so the Government won’t be able to change these.
The sting in the tail is that the Government’s proposals also refer to “improving the way in which procurement challenges operate”, to reduce costs for both challengers and the public sector. Reducing the cost of procurement challenges is likely to lead to a sharp rise in the number of procurement challenges that are brought in the future and procurement practitioners will need to prepare for this.
For more information
Contact Andrew Millross for more information.
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