‘No Deal’ Brexit changes to Scottish procurement law announced

The Scottish Government has published its first Procurement Policy Noteof 2019 outlining potential changes to public procurement legislation ‘north of the border’ in the event that the United Kingdom leaves the EU on 29 March without signing a Withdrawal Agreement (a “No Deal” Brexit). The proposed changes are predominantly technical in nature and would not fundamentally alter the conduct of public procurement in Scotland.

The majority of the amendments are designed to remove anomalous references to EU institutions, law and procedures that will arise in the event of a UK ‘No Deal’ exit from the European Union. Examples include removing references to “Member States” and deleting clauses that refer to sending reports to the European Commission.

Public procurement practitioners will be relieved to learn that the fundamentals of the Public Contracts (Scotland) Regulations remained unchanged – financial thresholds, the requirement to advertise public contracts, observance of minimum timescales and the rules on technical specifications and award criteria – will all remain as they currently are. As will the Procurement Reform (Scotland) Act 2014 which regulates sub-OJEU threshold public procurement in Scotland.

Other changes are more stylistic in nature. For example, the pre-qualification European Single Procurement Document (“ESPD”) remains, albeit it will lose its European moniker and become the Single Procurement Document, or “SPD” in the event of ‘No Deal’.

At the request of the UK Government, the requirement for public authorities to afford equal treatment to bidders from countries which have signed the World Trade Organisation‘s plurilateral Government Procurement Agreement (“GPA”) for a period of eight months from exit from the EU in anticipation of the UK acceding to the GPA in its own right (Despite being a founding member of the WTO and of the GATT before it, the UK’s membership of the GPA is that of the European Union as a single entity and therefore requires to be re-negotiated).

A far more visible change to procurement processes will be the removal of access to the Official Journal of the European Union, (“OJEU”), in the event of No Deal. As the Procurement Policy Note outlines, notices that would previously have been published in OJEU will be published in an as yet to be created UK e-notifications portal instead. Work is going on to adjust the functionality of the the Public Contracts Scotland procurement portal to meet this new requirement in the event that it should be needed.

Amongst other changes, e-Certis, the European Union’s online depository of bidder documents is another casualty of a ‘No Deal’ Brexit with Scottish public bodies losing access to it. Similarly, Scottish public bodies will no longer be required to exclude bidders who had been convicted of defrauding the European Union’s institutions.

For the other nations of the United Kingdom subject to the Public Contract Regulations 2015, the UK Government has published its own ‘No Deal’ Brexit procurement guidance here.

Arfon Consulting Ltd has partnered with the Enterprise Nation small business service to offer Brexit related guidance to Buyers and Suppliers.  If you would like further information or assistance, please telephone 0330 001 1193 or email hello@arfonconsulting.eu.