22 December, 2020
As the end of the transition period fast approaches, the Public Contract Contracts Regulations and Concession Contracts Regulations are being amended to bring them 'onshore' but not repealed. They will remain the law until the government's review reaches a conclusion that changes everything. Contracting authorities required to tender goods and services should ensure they are aware of changes to the way in which public sector procurement notices are posted and viewed.
From 23:00 on 31 December 2021 a new e-notification service Find a Tender will be used to post and view notices; this service shall replace the requirement for contracting authorities to publish notices in the Official Journal of the European Union's Tenders Electronic Daily (OJEU/TED).
Find a Tender (known as FTS in government guidance) will reinforce the way in which public contracts are advertised, with all buyers holding competitive tenders for goods, services or works (over the agreed thresholds) required to publish their public procurement notices through the service. While Find a Tender will work alongside existing procurement portals, such as Contracts Finder (for below threshold procurements exempt from use of Find a Tender), it will become the central resource for suppliers to discover new public sector contracts.
Contracting authorities should be aware that any procurement projects that commenced prior to the end of the transition period must be concluded on OJEU/TED; whereas new procurements commenced after the end of the Transition Period are to be advertised on Find a Tender. The Cabinet Office provide further guidance on this process. This creates an option to wait a short period and avoid engagement with OJEU and TED.
Contracting authorities should also be aware of amendments to the Public Contracts Regulations 2015 brought about by The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 which come into effect on 01 January 2021. While the process of public procurement will, in the short term, remain similar post BREXIT (with changes like Find a Tender), the Government has been vocal about its desire to scrutinize the process.
The recently released Green Paper is intended to provide an opportunity for interested parties to shape the future of public procurement in the United Kingdom. The Government's goal being to speed up and simplify procurement processes, place value for money at their heart, and unleash opportunities for small businesses, charities and social enterprises to innovate in public service delivery.
However, the government's commitment to individual membership of the WTO following BREXIT implies that the WTO's Government Procurement Agreement (GPA) rules will apply directly to the UK.
The GPA commits members to open their public procurement markets to contractors from other member countries. The GPA also contains rigorous rules on how public sector procurements must be conducted (its provisions are referenced in the EU public procurement directives). Becoming a WTO signatory will therefore restrict the UK Government's ability to do what it wants on procurement law.
Forbes Solicitors will be producing guidance and hosting events relating to the Green Paper in the early part of 2020. Details of what we have planned will be published at a later date.
For more information contact Daniel Milnes in our Governance, Procurement & Information department via email or phone on 01254 222313. Alternatively send any question through to Forbes Solicitors via our online Contact Form.