james falleUnsurprisingly Brexit was in the limelight at the Public Procurement Global Revolution Conference hosted by Nottingham University. This excellent conference had high profile international speakers from across governments, the Commission, international institutions, academia and the legal profession. 

James Falle, partner in our commercial team and head of the firm's procurement, competition and state aid practice, gives his thoughts about Brexit and procurement, inspired by the debates.

After Brexit, will UK business be able to bid for EU27 government contracts?  

Of course this depends partly on what Brexit deal the UK manages to negotiate. 

But looking at recent EU practice, it is virtually inevitable that EU27 will view a deal on public procurement as a condition of agreeing a trade deal of any description. That being so, British business can expect access to EU government procurement assuming there is some form of trade deal.

But even if there is no deal, we should remember that in practice some member states allow nationals of third countries to bid for government contracts, so some access will probably remain even if there is no trade deal (that is the case even if the UK does not sign up to WTO / GPA procurement rules).  

Not all of these member states allow unsuccessful bidders from third countries to bring legal challenges, but I suspect most UK firms can live with this so long as they at least have chance to bid.

Single market membership

Just a week ago it seemed that the UK would inevitably leave the Single Market. But Parliament is now hung and there are vocal calls from some quarters for the Government to review its position.

Talking to many delegates from the EU, there were two sentiments. First incomprehension that the UK could have been so stupid as to get itself into the current mess (my words, their sentiment). And secondly a serious question mark about whether the EU27 would allow the UK to remain in the Single Market at all, even if the Prime Minister did a volte-face. 

That said, I can't help thinking Single Market membership would be available at the right price (presumably that price would have to include the UK allowing freedom of movement).

Need for an internal "free trade agreement"?

It is possible that below threshold procurement will be less regulated than at present. Will we see a proliferation of "buy local" policies for smaller contracts?

Would it be acceptable for the Welsh or Scottish Governments or for any local authorities to actively promote local business over businesses from other parts of the UK? This opens up a fascinating possibility: as one speaker suggested, could we see the need for an internal free trade agreement to ensure no discrimination within the UK?

As an aside, it is worth mentioning that even now some will question whether there is really a fully level playing field in this area throughout the UK.

World Trade Organisation / Government Procurement Agreement

A short reminder that the WTO rules are less extensive than the EU directives. So for example concessions, what used to be known as "Part B Services", hard defence and water sectors are not regulated under WTO / GPA procurement rules. This gives the UK more flexibility, but also means UK firms may have less access to EU government contracts in these fields.

Procurement Lawyers Association report

The PLA has been working hard on Brexit. Look out for their papers to be published shortly at at www.procurementlawyersassociation.org. I'm expecting it to helpfully complement Professor Sue Arrowsmith's report to the European Parliament in April - which you can access here

Learn more on this topic by contacting James on +44 (0)1392 411221 or email james.falle@footanstey.com.

See James' original article on LinkedIn.

Tags: Commercial2017


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