Exit Day …. but business as usual for public procurement

Today we leave the European Union, and we enter a transition period until at least the end of December 2020. This transition period could itself be extended although this would require Parliamentary approval via new primary legislation. Given the hefty Conservative majority in Parliament, presumably this would be achievable although doubtless politically difficult. The Government will want to avoid the necessity of extending if possible.

During the transition period, there is no change to the public procurement law regime; the EU Directives on public procurement all continue to apply as if the UK were still a member state.

What happens at the end of the transition period is less easy to predict but there is very unlikely to be any radical change to the procurement regime in the next year or two.

The shape of post-Brexit public procurement in the UK largely depends on two things (1) the details of the “deal” reached during the transition period, if indeed one is reached at all, and (2) the strength of the Government’s drive to push for regulatory reform.

At one end of the spectrum, as part of a trade deal, we might agree to continue to apply the EU Directives on procurement as if we were a member state, with advertisements and notices still being placed in the OJEU.  At the other end, we might leave with no deal at all, defaulting to the slimmer (but still significant) regime of the WTO Government Procurement Agreement (by which we will be bound). You can read more about the WTO regime in our blog post here.

There are signs lately that the Government is increasingly interested in exploring how a potential freedom from the EU procurement regime might allow it to alter public procurement in the UK in the longer term.

The Cabinet Office has established a Procurement Transformation Advisory Panel and is establishing stakeholder groups to consult on options for regulatory change. Both Dominic Cummings and Sajid Javid have both been highly critical of the current regime and have implied that there will be no regulatory alignment with the EU procurement regime going forward; so in theory our procurement law regime could diverge significantly.

To conclude, as we leave the EU today, it is a case of watching and waiting; keeping up with the state of negotiations between the EU and the UK during the transition period and listening to the noises coming out the Cabinet Office’s transformation panel. We'll be blogging on all the key developments as they happen - you can sign up here to be notified whenever a blog is posted.

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