Despite the full effectiveness of Brexit in January 2021, the legislative framework applicable to public procurement in the UK remains virtually unchanged and, consequently, very closely aligned with the 2014 Public Procurement Package and the earlier EU Directives on defence and security procurement, as well as on procurement remedies. However, in early 2021, the UK Government undertook a public consultation on planned reforms, and, at the time of writing, the Cabinet Office is working towards new legislation to enter into force in 2023 or 2024. Therefore, significant changes can be expected relatively soon. This short overview focuses on the state of UK public procurement law as of mid-January 2022 and updates will be posted from time to time. Anyone interested in more specific details of the process of legal reform in the UK is welcome to contact Prof. Albert Sanchez-Graells (a.sanchez-graells@bristol.ac.uk).

In terms of general coverage, it is worth pointing out that, since January 2021, the UK is a member of the WTO Government Procurement Agreement in its own right. Its schedules of coverage replicate those of the EU, which means that the coverage of central and sub-central government entities is comparable to that of the EU Member States under the GPA. In addition to that, the procurement chapter of the EU-UK Trade and Cooperation Agreement extends the scope of coverage of regulated UK procurement to utilities and most of the ‘Part B’ services covered by the EU Directives—with the explicit exclusion of healthcare services, though. Further, the EU-UK TCA also imposes reciprocal obligations of national treatment of locally established suppliers, which partially extends the scope of regulated UK procurement. Finally, it is worth noting that pursuant to the Northern Ireland Protocol, general EU Treaty principles continue to apply to below threshold procurements which are of cross-border interest, and which involve the provision of goods into Northern Ireland. Together with the extended effects of the UK’s EU Withdrawal Agreement regarding the transitory rules applicable to procurements initiated before the end of the transition period and to call-offs within framework agreements concluded before that date, this creates further continuity in rules alignment and coverage of procurement with that of the EU Member States, at least until the end of 2024.

The general domestic organisation of procurement in the UK reflects the constitutionally devolved nature of the competence for its regulation. During its membership of the EU, the UK transposed EU public procurement law through two sets of regulations: one applicable in England, Wales and Northern Ireland, the other in Scotland. Post-Brexit, there is scope for divergence in the regulation of procurement across the four nations. This will be regulated under a provisional common framework adopted in March 2021 to set out proposed four-nation ways of working for domestic and international public procurement policy and legislation, and which is intended to guide the actions of policy officials of all four nations as they develop policies on public procurement.

Hitherto, the UK Government consistently limited the transposition of EU public procurement rules to a very strict ‘copy-out’ approach to avoid gold-plating, i.e. to avoid going significantly beyond the minimum required by EU rules. This ensured a very close alignment of UK and EU rules, with the main drawback that the rules were not developed or linked up to a broader set of administrative law provisions. This created the need for additional guidance—mainly through so-called Procurement Policy Notes (PPN)—but also left some regulatory gaps that made the practical implementation of the EU-derived rules rather challenging.
The transposition of Directive 2014/24/EU was done through the Public Contracts Regulations 2015. As mentioned above, it was almost a word for word transposition of the Directive, with some changes in drafting that sometimes altered the intended meaning of the rules. Some of those discrepancies were corrected shortly after transposition via the Public Procurement (Amendments, Repeals and Revocations) Regulations 2016, although some deviations from the EU rules remained concerning e.g. the award of light-touch regime contracts, the drafting of some exclusion grounds, the regulation of the competitive procedure with negotiations, or contract modifications that can lead to a duty to retender [for detailed analysis, see A Sanchez-Graells, ‘The Copy-out of Directive 2014/24/EU in the UK and its Limited Revision Despite the Imminence of Brexit’ (2019) 28(5) PPLR 186-200’]. More recently, and to adapt the PCR2015 to a post-Brexit regulatory scenario, the rules have been amended once again via the Public Procurement (Amendment etc) (EU Exit) Regulations 2020, primarily to create a UK e-notification service (Find a Tender, FTS) to replace the EU-wide publication of procurement notices through the Official Journal of the EU (TED), and to reallocate to the Minister for the Cabinet Office the powers and functions of the European Commission.

It should not come as a surprise that, given the copy-out technique and the main worry of avoiding gold-plating in the transposition, the UK decided not to develop optional rules concerning:
(i) standard terms for how groups of economic operators are to meet the requirements as to economic and financial standing or technical and professional ability referred to in Art 58 of Directive 2014/24/EU [Art 19(2) Dir 2014/24];
(ii) the use of specific electronic tools, such as of building information electronic modelling tools or similar for public works contracts and design contests [Art 22(4) Dir 2014/24];
(iii) the possibility of mandating the use of electronic catalogues for specific types of procurement [Art 36(1) Dir 2014/24];
(iv) mandating the award of contracts in the form of separate lots [Art 46(4) Dir 2014/24];
(v) restricting or excluding the possibility of examining tenders before verifying the absence of grounds for exclusion and the fulfilment of the selection criteria [Art 56(2) Dir 2014/24];
(vi) establishing or maintaining either official lists of approved contractors, suppliers or service providers or providing for a certification by certification bodies complying with European certification standards [Art 64(1) Dir 2014/24]; and
(vii) excluding or restricting the use of price only or cost only as the sole award criterion [Art 67(2) Dir 2014/24].

However, the UK made use of some of the optionality by deciding to allow discretion to contracting authorities to exercise some of the options left open by Directive 2014/24/EU, such as:
(i) reserving the right to participate in public procurement procedures to sheltered workshops and economic operators whose main aim is the social and professional integration of disabled or disadvantaged persons, or providing for such contracts to be performed in the context of sheltered employment programmes [reg.20(1) PCR2015];
(ii) specifying the level of security required for the electronic means of communication in the various stages of the specific procurement procedure, and that level shall be proportionate to the risks attached [reg.22(17)(b) PCR2015];
(iii) the possibility for sub-central contracting authorities using restricted procedures to set the time limit for the receipt of tenders by mutual agreement between the contracting authority and all selected candidates [reg.28(7) PCR2015]; and
(iv) the possibility of limiting the number of lots that may be awarded to one tenderer, where tenders may be submitted for several or all lots [reg.46(4) PCR2015].

Similarly, and following the philosophy of minimal transposition, the UK decided to transpose the rules on the use of the negotiated procedure without prior publication. Reg.32 PCR2015 alters the order of Art 32 of Directive 2014/24/EU significantly, but it does not expand any of the grounds for the use of the procedure. In a very similar fashion, reg.37 PCR2015 transposes the rules in Art 37 of Directive 2014/24/EU without significant changes. Similarly, reg.39(3) PCR2015 clearly states that contracting authorities shall be free to use centralised purchasing activities offered by central purchasing bodies located in another member State, which avoids imposing any restriction on the type of non-domestic CPB to which contracting authorities can resort [cf Art 39(2) in fine Dir 2014/24]. One area where the exercise of the optionality in the Directive has been used more fully concerns subcontracting, which is developed in reg.71 PCR2015 and transposes Art 71 of Directive 2014/24/EU.

Once more, given the general approach to the transposition, it should come as no surprise that the PCR2015 took a rather minimalistic approach to the transposition where the EU rules imposed specific aims on Member States that, due to their general or imprecise nature, were harder to operationalise in specific rules. The most remarkable example is the lack of transposition of Art 18(2) of Directive 2014/24/EU imposing an obligation on Member States to ensure compliance with applicable obligations in the fields of environmental, social and labour law established by Union law, national law, collective agreements or by the international environmental, social and labour law provisions listed in Annex X. This could make the interpretation of the rules rather complicated, in particular where the pre-Brexit case law of the Court of Justice that remains of relevance for the interpretation of the PCR2015 as retained EU-derived law has established that ‘such a requirement constitutes, in the general scheme of that directive, a cardinal value with which the Member States must ensure compliance pursuant to the wording of Article 18(2) of that directive’ (Judgment of 30 Jan 2020, Tim, C‑395/18, EU:C:2020:58, para 38).

To conclude, although the copy-out transposition and the minimal exercise of discretion in the UK have created some difficulties, given the current UK government’s position that one of the Brexit dividends is the possibility to significantly reform UK public procurement law, the situation is likely to change in the near future. The December 2020 green paper ‘Transforming Public Procurement’ put forward proposals for the reform of the system [for detailed discussion of the proposals, see A Sanchez-Graells, ‘The UK’s Green Paper on Post-Brexit Public Procurement Reform: Transformation or Overcomplication?’ (2021) 16(1) EPPPL 4-18. After analysing the 600+ submissions to the public consultation, in December 2021, the UK government published a response that introduced minimal changes to the original proposals. It is expected for proposed legislation to be introduced in Parliament at some unspecified time, possibly during 2022.