To OJEU or not to OJEU? ‘No Deal’ Brexit guidance for public procurement issued

The Department for Exiting the EU, known by the unwieldy acronym “DExEU”, published its second flurry of ‘No Deal’ Brexit technical guidance notes following a marathon 3 hour Cabinet meeting at no. 10 Downing Street earlier today.

Nestling amongst the technical guidance notes on everyday matters such as driving licences, mobile roaming, and data protection was a technical note on public procurement processes in the event of a ‘No Deal’ exit from the European Union in March 2019.

Before 29 March 2019

Presently, all public contracts above a certain financial threshold are published in the Official Journal of the European Union (OJEU) by public authorities via the Tenders Europe Direct (TED) portal in full compliance with the 2014 Public Procurement Directives for utilities, concessions and other ‘classic’ public contracts.

Additionally, following a mandatory 48-hour standstill period, public contracts are also published to UK “domestic” procurement portals; being,

After 29 March 2019

In the event of a ‘No Deal’ exit from the EU, the UK Government confirmed that whilst EU procurement legislation would be ‘grandfathered’ into UK domestic law by virtue of the EU (Withdrawal) Act, public authorities would no longer have access to the OJEU/TED portal to advertise their above threshold public contracts.

Pledging to pass secondary legislation to ensuring continued operability of the legislation at both central government and, by implication, the UK devolved administrations, the Government confirmed that all post No Deal Brexit contract opportunities henceforth be published on a new UK e-notification service, in lieu of the current requirements to send notices to the EU Publications Office for publication on OJEU/TED.

Contracting authorities would still retain the responsibility of publishing contract opportunities to existing domestic public procurement portals, but would to ensure that the contract opportunity was also directed to publish on the new UK e-notification service, with UK contracting authorities and entities to be contacted to ensure familiarity and readiness “nearer the time”.

Ironically, and not covered in the technical note, is the fact that the contract for a supplier to build the IT platform necessary to fulfill the function of a UK e-notification service would itself have to advertised prior to Brexit on 29 March 2019 in the Official Journal in accordance with present EU Public Procurement Directives.

In the European Commission’s own countervailing Preparedness Note on public procurement it confirms that upon withdrawal from the Union, all guarantees associated with EU public procurement law will cease to apply to suppliers interested or participating in public procurement procedures in the UK due to its third country status in the absence of the UK acceding to the WTO Government Procurement Agreement.  A process, which the UK confirms in its own technical note, is still underway.

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