Since the Referendum result, there has been much discussion about the effect on public procurement rules in the UK and whether Brexit will result in changes to UK legislation.
For now, the UK is still a member of the EU and therefore the Public Contracts Regulations 2015, the Utilities Contracts Regulations 2015 and the other EU rules and regulations relating to the award of public contracts are still relevant and need to be followed.
When the UK does leave the EU, it will need to decide whether to retain the EU directives which have been formally implemented into UK law through parliamentary legislation (as they will not fall away merely as a result of the UK leaving the EU), or to introduce something else.
It seems unlikely that the government will choose to simply abolish the regulations governing public procurement in the UK. If the UK still wishes to trade with the EU on preferential terms, it is highly likely that as part of any agreement the UK would have to still continue to comply with EU procurement rules. The UK was heavily involved in drafting the current EU procurement rules, so for the most part it meets the UK’s requirements. The Regulations play an important part in helping to fight bribery, corruption and anti-competitive practices, and the UK will need to continue to have robust procedures to fight these issues.
Any attempt by the UK to limit the rights of EU companies to win contracts from UK public authorities is likely to lead to similar bars for UK companies wanting to continue to bid for contracts in EU Member States. Further, the UK is still a member of the World Trade Organisation (WTO) and a signatory to the Government Procurement Agreement, which requires signatories to implement robust public procurement procedures. The consequence of failing to do this being that WTO proceedings may be brought against the state in question.
So the message is that, for now, the status quo remains. Public authorities need to ensure that their procedures comply with the Regulations governing public procurements, and bidders can bring a challenge in respect of a tender process which has been conducted in breach of these Regulations. Indeed it seems highly likely that even once the UK leaves the EU it may not change the current legislation, or if it does such changes may not be significant.
If you find yourself in a situation where something has gone awry in a public procurement procedure (whether you are awarding or bidding for the contract), get in touch with a member of our team as soon as possible. There are very strict time limits for bringing challenges under the public procurement regulations and delaying even for a short amount of time could mean you are prevented from bringing a claim.
For more information, email firstname.lastname@example.org.