Public procurement – the current framework

A package of Public Procurement Directives set out the EU legal framework for procurement by public authorities and utilities: the Public Contracts Directive 2014, the Concessions Contracts Directive 2014, and the Utilities Directive 2014.

These EU Directives govern procedures for the award of public contract to a supplier (a provider of works, supplies or services) when its value exceeds set financial thresholds, unless it qualifies for a specific exclusion. They require procurements to be competed transparently and fairly.

The Public Procurement Directives were implemented for England, Wales and Northern Ireland by the following regulations:

• the Public Contracts Regulations 2015;
• the Concession Contracts Regulations 2016; and
• the Utilities Contract Regulations 2016.

The Public Procurement Directives were implemented separately by the Scottish Government via the following regulations:

• the Public Contracts (Scotland) Regulations 2015;
• the Concession Contracts (Scotland) 2016; and
• the Utilities Contracts (Scotland) Regulations 2016.

Defence and security procurement is dealt with separately in the Defence and Security Public Contracts Regulations 2011 which apply to the whole of the UK.

After no-deal Brexit

If the UK leaves the EU without a deal, the public procurement regulations will remain broadly unchanged after EU exit at 11pm on 29 March 2019 (may also apply to new exit date on 31 December 2020).

On 13 December the Cabinet Office laid a draft Statutory Instrument (SI) before both Houses of Parliament. After the laying date, it may be viewed at the Statutory Instrument pages on GOV.UK. The SI is subject to change until it is made. Only once it is made will the contents of the new regulations be settled.

What will change for contracting authorities and entities

The current regulations will be amended to ensure they remain operable and functional on exit. The majority of the procurement regulations and in particular the different procedures available to contracting authorities and entities, will remain exactly the same. The key difference for contracting authorities would be the need to send notices to a new UK e-notification service instead of the EU Publications Office.

Contracting authorities have a legal obligation to publish public procurement information. In a no deal scenario, contracting authorities may no longer have access to the EU Publications Office and the online supplement to the Official Journal of the EU dedicated to European public procurement (Tenders Electronic Daily). Therefore the Government will be amending current legislation to instead require UK contracting authorities to publish public procurement notices to a new UK e-notification service. The new UK e-notification service will be ready for use by exit day.

The requirement to advertise in Contracts Finder, MOD Defence Contracts Online, Public Contracts Scotland, Sell2Wales and eTendersNI will remain unchanged.

What contracting authorities need to do now

Contracting authorities who are currently working with a third party provider (ie an ‘e-Sender’) to submit notices to the EU Publications Office should be able to continue to use them provided that the e-Sender successfully completes integration work to post notices to the new UK e-notification Service.

The following e-Senders have told Cabinet Office that they intend to integrate their services with the new UK e-notification service in early 2019.

• Adam (useadam.co.uk)
• ADB (UK) Limited
• BiP Solutions
• EU Supply
• Jaggaer
• Millstream Associates (part of Proactis)
• Proactis
• Sourcedogg

Organisations that use other e-senders

This list will be updated as and when eSenders confirm their timetables for testing and go-live. Contracting authorities may wish to contact their eSenders to ask them about their plans for integrating with the new UK e-notification service.

Organisations that publish direct to Official Journal of the European Union (OJEU) / Tenders Electronic Daily (TED)

Those contracting authorities who 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.

What will change for businesses

Suppliers wishing to access UK contract opportunities from the UK public-sector will need to access the new UK e-notification service instead of Tenders Electronic Daily (TED). Suppliers can continue to access the relevant domestic portal, such as Contracts Finder, MOD Defence Contracts Online, Public Contracts Scotland, Sell2Wales and eTendersNI.

Suppliers who wish to access contract opportunities from the EU may continue to do so via OJEU/TED. Additional information on this has been published by the EU.

Procurements in progress on exit day

Some organisations will have a regulated procurement in progress on 29 March 2019 (may also apply to new exit date on 31 December 2020). We will publish further detailed technical guidance for this transitional period early in 2019 once the statutory instrument is made.

For procurements that have commenced before 11pm on 29th March 2019 (may also apply to new exit date on 31 December 2020) (ie they have been advertised in the OJEU already), contracting authorities will need to comply with the new regulations from that point, for example by posting subsequent contract award notices on the new UK eNotification service instead of OJEU TED. However, the effect of the former rules will be preserved in some circumstances to maintain fairness throughout the procurement.

Contracting authorities which commence their procurements after 11pm on 29th March 2019 (may also apply to new exit date on 31 December 2020) will need to follow the amended regulations.