The Trade and Cooperation Agreement between the EU and the UK was signed on 24 December 2020 (Agreement) and runs to over 1,200 pages. In this article, Dorit McCann distils the key rules on public procurement contained in the Agreement.
Public procurement is dealt with under Title VI of the Trade Section of the Agreement with the stated aim to guarantee suppliers' access to, and transparency of, public procurement procedures. The Agreement incorporates and applies many of the substantive obligations of the WTO Agreement on Government Procurement (GPA).
What does the GPA cover?
The GPA commits members to open up public procurement markets to contractors from other member countries. It requires members to ensure open, fair and transparent conditions of competition in the public procurement market. The main rules of the GPA establish requirements for non-discrimination and transparent award procedures (including advertising) and remedies for affected suppliers.
Does the Agreement simply incorporate the provisions of the GPA?
The Agreement goes well beyond commitments under the GPA. In particular, the UK and EU agreed to extend market access to the gas and heat distribution sector, private utilities that act as a monopoly, and a range of additional services in the hospitality, telecoms, real estate, education and other business sectors. The Agreement also provides for non-discrimination against EU companies established in the UK (and vice versa) for small-value procurements, ie below the threshold of the GPA.
What additional obligations are contained in the Agreement?
Obligations in the Agreement that go beyond existing GPA obligations include commitments to:
- ensure that procuring entities conduct covered procurement by electronic means to the widest extent practicable, including electronic publication of all procurement notices;
- limit the information that must be provided by a tenderer to demonstrate that it should not be excluded from a tender;
- ensure that any requirements for prior experience should not require such experience to have been gained in that party's territory;
- ensure that, if a registration system is maintained, interested suppliers may request registration at any time and shall be informed of the decision within a reasonable period;
- ensure that, where selective tendering procedures are used, procuring entities invite sufficient bids to ensure genuine competition;
- enable a procuring entity to examine the impact of any subsidy in supporting the submission of an abnormally low tender;
- ensure that procuring entities may take into account environmental, labour and social considerations throughout the procurement procedure;
- not to discriminate against EU companies established in the UK (and vice versa) in respect of procurements not covered by the Agreement.
What dispute mechanisms are available under the Agreement?
The Agreement allows the use of the GPA's bilateral dispute settlement mechanisms for disputes relating to procurements which are subject to the GPA.
In addition, the Agreement requires each party to adopt procedures which provide for rapid interim measures to preserve suppliers' opportunities to participate in procurements, for example suspension of the procurement process or, where the contract has already been entered into, suspension of the performance of the contract.
The rules contained in the Agreement mean that EU companies will be able to participate on an equal footing with UK companies in bids for procurement tenders covered by the Agreement, and vice versa. It remains to be seen how the principles set out in the Agreement will be incorporated into the reform of public procurement announced by the UK Government in its Green Paper on ‘Transforming public procurement’, which was published on 15 December 2020.
For more information or to discuss any Brexit related issues impacting your business, please get in touch with Dorit McCann (EU, Competition & Procurement), Maureen Daly (IP and Data Protection) or Emer Moriarty Crowley, Damian Maloney, Shaun O'Shea (Corporate and Commercial), Barry Cahir (Litigation and Insolvency), Sandra Masterson Power (Employment), or you usual Beauchamps contact.