Public Procurement

The EU-UK Trade and Cooperation Agreement, now in place, means change. It will require adapting to new trading arrangements, rules and regulations. This information for cross-border SMEs in Ireland and Northern Ireland will introduce public procurement, FAQs and key takeaways. 

Ireland and northern ireland 

The Northern Ireland protocol does not apply the EU procurement rules meaning that Northern Ireland is in the same position as the rest of the UK and the EU procurement rules will cease to apply. The Brexit deal has put in place new procurement guarantees which will continue to allow suppliers of goods, services and contractors for works to tender for, participate in competitions and be awarded public sector contracts.  One area where businesses in both Northern Ireland/Ireland should be aware of is how tenders are advertised. Going forward any high value tenders above £122,976 in the UK will no longer be advertised on the OJEU/TED system. They will instead be advertised on the new Find A Tender System which can be accessed  here. All tenders in Ireland will continue to be advertised on the OJEU/TED system as they had been previously.

gb and ireland 

Suppliers in Ireland and the UK are entitled to participate in procurement competitions in the other state, in the sectors covered with guarantees of equal treatment. The response of public bodies to the changed trading relationship between the EU and the UK in 2021 should be focused on two aspects. Tendering public bodies should act to ensure that tenders received from UK providers have the same level of access to opportunities in the Irish public service as previously. No restriction on access to tender opportunities should be applied to UK providers. The principles of openness and transparency should be strictly observed in respect of UK-based tenders. Management of contracts – tender competitions leading to the award of public contracts must pay close attention to the operability of the contract where it may involve a tender proposal from a UK-based provider. Detailed guidance is available from GOV.IE, click here.

gb and northern ireland 

There is no change to public procurement between GB and Northern Ireland.

Important Takeaways 

IMPORTANT TAKEWAYS

Suppliers from the other jurisdiction are entitled to apply for redress including a court order stopping the process, potentially invalidating an award and/or granting compensation, where there has been a breach of the guarantees.

IMPORTANT TAKEWAYS

The UK system of procurement will continue for the moment, to be very similar to that which applied last year. UK opportunities will no longer be published in the EU Journal and the TED website. The UK has replaced the publication of tenders through the EU journal and portal with the new “Find a Tender” system and portal.

IMPORTANT TAKEWAYS

The UK intends to streamline its procurement rules aiming for simplification and reform. The look and feel of the UK procurement system will not be the same as that in EU states. However, the above protections and guarantees for participation by suppliers will apply.

Procurement FAQs

Do the procurement rules apply to all public sector contracts?

Procurement refers to tendering for contracts for goods, services and works by public sector bodies. They are designed to secure free and fair competition for suppliers, and to achieve the most economically advantageous tender price and terms for the public sector body.

What are the value thresholds for the EU procurement rules?

There are different limits depending on the type of contract and the type of procurement authority concerned. The main limits under the EU rules are  €139,000 for most types of services and supplies purchased by central government authorities and €5,350 000 for construction contracts.

What are the value thresholds for the new EU UK procurement rules?

The main limits under the EU UK TCA are: €438,000/£378,660 for most goods and services and €5,350,000/£4,733,252 for construction contracts. The EU UK TCA further provides for non-discrimination of EU companies established in the UK (and vice versa) for small-value procurement, i.e. below the threshold of the GPA (from €139,000 to €438,000, depending on the contracting entity, and €5,350,000 for construction services).

Does the Northern Ireland Protocol apply to procurement?

No. Northern Ireland is subject to the new UK procurement rules. The EU rules apply only to certain aspects of the electricity market, which support the all-island energy arrangements.

What is the position on existing contracts?

Tenders that commenced prior to 2021 continue to be subject to the EU-wide rules. Existing contracts and tenders also continue under the pre-2021 EU rules. Accordingly, those who have been awarded such contracts will continue to have the benefit of the existing EU rules. This also applies to frameworks under which a panel is established for a particular period. Generally, Brexit will not change the position under existing contracts that have been awarded. However, it is necessary to look at the particular terms of the contract as the contract requirements might be affected by Brexit. For example, it might be required that products comply with certain standards or that contractors or employees of certain qualifications. In some cases performance may be more difficult because of customs and other new costs.

What sectors are covered by the new EU UK guarantee?

The sectors that are covered are broad, but not all sectors are covered. The sectors covered are defined by detailed lists filed by the EU and UK with the World Trade Organisation. They are available online at the World Trade Organisation’s website. The EU UK Trade Agreement expands upon these lists of sectors, so that it is necessary to consider both lists in order to confirm whether it applies to a particular sector.

What redress would I have for breach of the new procurement guarantees?

There will be a right to take action before an independent body such as a court. It may grant an order suspending the competition, may invalidate a contract awarded or award compensation where there has been a breach of the rules.

What guarantees will I have under the EU UK TCA?

Authorities cannot discriminate against suppliers based in the other jurisdiction. They must take into account, qualifications resources and experience gained in the other jurisdiction. They may not make unnecessary requirements which effectively discriminate against suppliers from the other jurisdiction. If the supplier from the other jurisdiction forms a company in the tendering authority’s jurisdiction, they must take into account the experience and competence available to it in its home jurisdiction.

Do the procurement rules apply to all public sector contracts?

No. The EU rules do not apply below certain value thresholds and to certain very sensitive sectors and types of types of contracts.

The new EU UK Trade and Cooperation Agreement guarantees apply in the sectors specified. It is necessary to look at the very precise sectoral rules filed by the EU and UK with the World Trade Organisation as varied by the TCA to see the precise sectors included and excluded.

If your business has an important government contract in the other jurisdiction, it is important that you check the position well in advance of renewal. There are some sectors where the EU rules might have applied but the new rules will not apply.

Will I be excluded from tender competitions where the new guarantees do not apply?

Even where the EU UK TCA guarantees do not apply, Irish and UK public authorities may choose to permit tenderers based in the other jurisdiction to participate. However, they are not obliged to do so. They will be treated in the same way as tenderers from other non-EU countries and will have limited protection. In some such cases, there are limits on the percentage of products that may come from outside the EU under the contract.

Where the guarantees do not apply, it will be necessary to consider the qualifications applicable to tenderers in the sector and for the contract concerned. They will usually be published in the tender documents. Where a business has an important contract, it would be desirable to pre-empt this question with the authority concerned, well before renewal of the contract concerned.

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