Q&As

Will contracting authorities have to continue to advertise public contracts in the OJEU in light of Brexit?

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Produced in partnership with Brendan Ryan of Pinsent Masons
Published on LexisPSL on 04/07/2016

The following Commercial Q&A produced in partnership with Brendan Ryan of Pinsent Masons provides comprehensive and up to date legal information covering:

  • Will contracting authorities have to continue to advertise public contracts in the OJEU in light of Brexit?

In the immediate aftermath of the EU referendum, and for the foreseeable future, the UK remains a member of the European Union. Therefore, the UK public procurement regime which derives from EU procurement law remains in place. For instance, the Public Contracts Regulations 2015, SI 2015/102 (PCR 2015)–which contain the requirement to advertise certain public contracts in the Official Journal of the European Union (OJEU)–remain in force in England, Wales and Northern Ireland. Unless and until the PCR 2015 are amended or repealed, contracting authorities should continue to publish OJEU notices accordingly.

It is unclear what public procurement requirements will survive the UK’s departure from the European Union. However, whatever the outcome of the exit negotiations, it is highly likely for the following reasons that some form of advertising will continue to be required:

  1. the PCR 2015 (and in Scotland, the Public Contracts (Scotland) Regulations 2015, SSI 2015/446) implement Directive 2014/24/EU (Directive), which in turn is loosely based on the World Trade Organisation’s (WTO) Government Procurement Agreement (GPA). The GPA’s rules are relatively flexible, but two fundamental principles of that regime are that public contracts must be advertised and that businesses established in other GPA countries must be allowed to tender for those contracts. As discussed below, the UK is likely to remain subject to the GPA foll

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