Procurement if there is “No-deal BREXIT”

The UK Government withdrew its guidance “Accessing public sector contracts if there’s no Brexit deal” on 17 January 2019.  However, it did pre-empt the withdrawal with its new guidance on 14 January 2019 “Public-sector procurement after a no-deal Brexit”

The online document sets out the provision of the new UK e-notification service, which “will be ready for use by exit day”.  Although no details of the new UK e-notification service have been revealed, many e-Senders have told Cabinet Office that they intend to integrate their services with the new UK e-notification service in early 2019.

Those contracting authorities who currently submit their notices direct to the EU Publication Office, will need to register with the new UK e-notification service. Further information about how to register will be published in early 2019 if necessary.

Latest News – Cabinet Office have now announced that in a ‘no deal’ situation, the new UK e-notification service will be accessible through a number of e-senders and also through the log-in details for Contracts Finder.

For procurements that have commenced before 11pm on 29th March 2019, contracting authorities will need to comply with the new “The Public Procurement (Amendment etc.) (EU Exit) Regulations 2019” from that point, eg subsequent contract award notices will need to be published on the new UK eNotification service instead of OJEU TED.  It is important to understand that the “UK e-notification service” is additional to Contracts Finder, which will still require publication of call-off Contract Award Notices.

“The Public Procurement (Amendment etc.) (EU Exit) Regulations 2019”.

This Statutory Instrument was created and laid before both Houses on 13 December 2018, has gone through various scrutiny sessions, and on 9 January 2019 a motion to approve was tabled by the Government in the House of Lords where it sits in the list of “Affirmative Instruments waiting for Affirmative Resolution” along with hundreds of other No-deal BREXIT related Statutory Instruments.

The principle purpose of the Statutory Instrument is to change EU references to UK references immediately throughout:

• Redefining the thresholds in £ rather than € (However, the thresholds remain as existing)
• Deleting any and all definitions and references to “the Commission” and European policies, directives and regulations.
• In some cases “EU obligations/law” is replaced by “retained EU obligations/law”
• Greater reference to Government Procurement Agreement.
• Allowing the Cabinet Office Minister to change or add to the exceptions to electronic communications to take account of technical developments.
• Adding new definitions and references to the SPD (Single Procurement Document)
• Change “EU Publications Office” to “UK e-notification service”
• Change “send/t” to “submit/ted”
• Change “ESPD” to “SPD”
• Omitting e-Certis references.
• Omitting the requirement for Contracting Authorities to recognise equivalent certificates from bodies established in other member States.
• Omission of the whole regulation 64 in respect of “Recognition of official lists of approved economic operators and certification by certification bodies” which removes the “Economic operators shall not be obliged to be registered on an official list or to provide a certificate issued by a certification body in order to participate in a public contract.” I assume this means that we can oblige tenderers to submit certificates.
• Omitting the exclusion of tenderers receiving state aid to provide abnormally low tenders. Although some commentators insist this means tenderers will not be able to claim approved state aid as a reason for abnormally low tenders.
• Where a procurement is commenced before exit day and includes follow up actions, eg renewal of ESPD and ESPD as proof in DPSs, renewal of certification, ESPDs of sub-contractors, exclusion grounds etc the regulations as unamended still apply.
• Where obligations are set up in a pre-Brexit contract or framework, the amendments listed in the SI do not take effect, if they contravene those obligations, eg in respect of activities permitted by a withdrawn regulation, technical specifications compatible with EU law and power to terminate contracts, which would be omitted from post-BREXIT regulations.

So who thinks we’ll leave with a deal, who thinks we’ll leave without a deal, and who thinks we won’t leave at all?