Beyond Brexit transition – the impact on procurement

Contacts: Kate Rees, Ciara Kennedy-Loest, Kathrine Eddon
19 November 2020

What's the issue?

The legal basis on which non-UK businesses can access the UK’s public procurement market is changing.  When the transition period under the Withdrawal Agreement ends on 31 December 2020, as a non-EU country the UK will no longer be party to a number of international agreements (including the Government Procurement Agreement or ‘GPA’) which currently guarantees access for non-UK businesses to the UK’s public procurement market. 

Where are we now?

The Government has taken steps  to replicate or ‘transition’ those agreements so that they apply to the UK after the end of the transition period, but has recognised that there may not be enough time for the secondary legislation needed to make that happen to be made into law by 31 December 2020.   By way of contingency, the Government has provided for existing access rights for non-UK businesses to be preserved in the Public Procurement (Amendment etc.) (EU Exit) Regulations 2020.  Those Regulations, which apply to England, Wales and Northern Ireland, were approved on 18 November 2020 and so will soon come into law.  Their overall purpose is to amend the current Public Contracts Regulations 2015, the Utilities Contracts Regulation 2016 and the Concession Contracts Regulations 2016 from 1 January 2021 in order to fix deficiencies which result from the UK’s withdrawal from the EU and to reflect the UK’s status as a non-EU member state.

What impact does this have?

For non-UK businesses, existing access rights will only be preserved for a maximum of 12 months from the end of the transition period, via the Public Procurement (Amendment etc.) (EU Exit) Regulations 2020.  What access rights will look like after that will depend on what direction UK procurement policy follows in future.  Looking to the short to medium term at least, that 12 month period should allow sufficient time for the UK and the devolved authorities to put secondary legislation in place to ensure the continuation of the UK’s obligations under the transitioned international agreements, including access rights for non-UK businesses.

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