Procurement Policy Note 10/20: Public Procurement after the transition period ends on 31 December 2020
As we fast approach the end of the transition period (23:00 GMT on 31 December 2020), the flurry of procurement policy notes from the Cabinet Office has continued.
PPN 10/20 "Public Procurement after the transition period ends on 31 December 2020" was published on 10 December 2020 and seeks to provide information on how the public procurement regulations will be affected after the end of the transition period. The PPN is accompanied by FAQs which provide more detail on the impending changes.
Largely, the PPN highlights and consolidates much of what has already been notified through various other PPNs.
The PPN also references the "draft Statutory Instrument" that has been made by the Minister for the Cabinet Office to fix "deficiencies in the public procurement regulations that are caused by the UK leaving the EU". By this, we assume the PPN is referring to the Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (the 2020 Regulations) that were signed into law on 19 November 2020.
The PPN highlights some key points to note from the 2020 Regulations and some of the more recent PPNs, in particular:
- New procurement opportunities from 23:00 GMT on 31 December 2020 should be published to the new Find a Tender Service (www.find-tender.service.gov.uk).
- For existing procurements that were advertised in the Official Journal of European Union (OJEU) before 23:00 GMT on 31 December 2020, contracting authorities should continue to publish subsequent notices to the OJEU, but should also send copies for publication to the Find a Tender Service (so bidders have only one place to look for information on contract opportunities).
- It is anticipated that the UK will accede to the World Trade Organisation Agreement on Government Procurement (the WTO GPA) as an independent member on 1 January 2021 (and, indeed, the Government deposited an instrument of accession to join the WTO GPA on 2 December 2020 with membership to take effect 30 days later).
- It is confirmed that the forms for procurement notices will remain the same (and that Voluntary Ex Ante Transparency notices will be available) in the new Find a Tender Service.
- Going forwards, the Minister for the Cabinet Office will be responsible for reviewing and revaluing the procurement thresholds, and that the thresholds will remain aligned to those in the WTO GPA.
- It is confirmed that for call-off contracts and contracts awarded under a Dynamic Purchasing System, the public procurement regulations which will apply to those contracts will be the regulations that applied at the time the framework agreement commenced or the DPS was advertised.
- The PPN also highlights that by virtue of the UK having joined the WTO GPA in its own right, UK companies will continue to have access to EU markets to the extent that the procurement is covered by the EU's coverage schedules to the GPA. Equally, the PPN notes that contracting authorities are not allowed to simply "Buy British" as this would not be consistent with the UK's obligations under the WTO GPA and other international agreements. The PPN also confirms that it is the Government's policy that all suppliers should continue to be treated equally and fairly through open competition.
With the Green Paper on public procurement reform now due to be published next week, we can expect more information before the end of the transition period as to what the future of procurement law and policy might look like in a post-Brexit world.