Procurement Policy Note 02/19 – ‘Deal’ and ‘No deal’ Brexit

The Cabinet Office has published

Procurement Policy Note (“PPN”) 02/19

, which confirms the actions that contracting authorities need to take in the event of a ‘deal’ or a ‘no deal’ Brexit. We summarise the draft advice provided below.

‘Deal’ Brexit

• The current public procurement framework will continue to apply during the implementation period (currently planned to be from 11pm on 29 March 2019 to 31 December 2020).
• For any procurement procedures ongoing at the end of the implementation period, the current public procurement framework will continue to apply up to the point of contract award.

‘No deal’ Brexit

• The public procurement framework will remain largely unchanged, aside from amendments to reflect the UK’s new independent status outside of the EU.
• Contracting authorities will need to publish public procurement notices to a new UK e-notification service, which will be available for active use from the time that the UK leaves the EU.
• Requirements to advertise on other platforms such as Contracts Finder or devolved administration systems (e.g. Public Contracts Scotland and Sell2Wales) will remain unchanged.
• Existing Contracts Finder users will automatically be enabled to publish to the new UK e-notification service and need take no action.
• Contracting authorities not already registered to use Contracts Finder will need to register as a Buyer at cabinetoffice.gov.uk/.
• Contracting authorities must comply with the new regulations (principally the advertising requirements referred to above) immediately from exit day, including in relation to procurement processes which were commenced before exit day.

Frequently Asked Questions (FAQs) were also published alongside the PPN. We summarise some of the pertinent issues raised below:

1. For procurement processes started before Brexit, previous notices need not be republished on the new UK e-notification service. However, any subsequent notices should be published on the new UK e-notification service and should include the OJEU/TED reference number.
2. The new UK e-notification service will take precedence over Contracts Finder and the UK e-notification submission should therefore be completed first.
3. There will be no automated link between the new UK e-notification service and Contracts Finder. Notices will therefore need to be submitted to each separately.
4. Contracting authorities who currently use a third-party provider to place notices should be able to continue to do so, provided that the third party successfully completes integration work to post notices to the new UK e-notification service. Contracting authorities should check the position to ensure that they can access the e-notification service as required and without delay.
5. Thresholds will be set and reviewed by the Minister for the Cabinet Office following Brexit and will remain aligned with those in the Government Procurement Agreement (GPA). The next review is due by January 2020. Changes will continue to be notified by way of PPNs.
6. Contracting authorities will still be able to access E-Certis to check equivalency for EU member states’ certificates but information on UK certificates will no longer feature.
7. The European Single Procurement Document (ESPD) will change its name to the Single Procurement Document (SPD) but the way that it operates will not change.
8. CPV codes will be retained in their current format and NUTS codes will continue to be used for the time being.
9. If there are any elements of the position or the PPN that readers do not understand, they are encouraged to speak with their legal advisers.

If you have any queries on the PPN or the impact of Brexit on procurement practice more generally, please contact one of our specialist team.