How will Brexit affect the tendering process once we have left the EU?

Currently businesses in the UK use TED (Tenders Electronic Daily) to get free access to tender opportunities from the European Union, the European Economic Area and beyond. TED is the online version of the Supplement to the Official Journal of the European Union (OJEU). It is dedicated to European public procurement and publishes 746,000 procurement award notices a year, including 235,000 calls for tenders which are worth approximately £485 billion.

Businesses can browse, search and sort procurement notices by country, region, business sector and more and all notices are published in the 24 official EU languages.

However, post-Brexit UK contracting authorities will no longer need to publish procurement notices on in the OJEU. So, what does this mean for UK businesses?

Where will businesses be able to find UK public procurement notices post-Brexit?

The current advice from the UK Government is that from 1 January 2021, UK contracting authorities will need to publish procurement notices through a new e-notification service called Find A Tender. This will replace the requirement to publish notices in the OJEU.

This means from 1 January 2021, businesses will be able to use Find a Tender to view public procurement notices published by UK contracting authorities. They will also continue to use existing portals, such as Contracts Finder, MOD Defence Contracts Online, Public Contracts Scotland, Sell2Wales and eTendersNI to view low value or location specific notices.

Will existing procurement laws change post-Brexit?

The UK’s existing procurement law is derived from EU directives and are contained in The Public Contracts Regulations 2015, The Utilities Contracts Regulations 2016, The Concession Contracts Regulations 2016 and The Defence and Security Public Contracts Regulations 2011. These will continue to apply post-Brexit unless they are repealed and replaced.

UK Prime Minister Boris Johnson has expressed a desire to fundamentally change public procurement rules to “back British business” by moving away from the current level playing field and potentially favouring UK companies over European rivals.

The Government has also indicated that after the Transition Period the current regime will change and the country will join the Government Procurement Agreement (GPA) and the UK’s procurement regime will be based around this.

What would this proposed change mean for UK businesses?

The Government Procurement Agreement (GPA) is an agreement between the 20 parties of the World Trade Organization. It allows UK businesses to bid for government contracts in other countries and foreign businesses to bid for contracts in the UK.

This means post-Brexit UK businesses will have some access to the public procurement markets of the 27 EU member states, as well as the USA, Japan and 18 other countries. However, whilst GPA membership opens up procurement above certain value thresholds, the UK will not have the same level of access to procurement markets that it had as an EU member.

Presently, the UK is signed up to the GPA through its EU membership. From 1 January 2021, the UK expects to join the GPA on substantially the same terms. It may take up to 30 days to come into force after 31 December 2020, but the UK Government believes that the impact on businesses should be minimal. UK businesses will still have access to government procurements in many overseas markets. They may temporarily lose some rights provided by the GPA.

Businesses concerned about bidding on a foreign government procurement shortly after 1 January 2021 should click here to contact the Department for International Trade.

What changes have already been made to UK procurement law?

The Public Procurement Regulations (Amendments etc) (EU exit) 2019 became law last year and its provisions will come into force on 31 December 2020.

One of the most notable changes as a result of this are, as mentioned earlier, that the UK public bodies will use Find a Tender and will no longer be required to publish notices on TED.

Existing templates for contract notices and contract award notices will be replaced with new templates to be used with Find a Tender. UK public bodies will no longer require bidders to explain prices and reject tenders which appear to be abnormally low where the bidder has received State aid.

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