Whilst the EU and the UK may have set 11pm on 31 December 2020 as the date when the UK’s exit from the EU is complete, public tenders and the award of public contracts generally don’t work to such specific timetables.
The UK formally left the EU on 31 January 2020 but continues to be treated as an EU Member State under the terms of the Withdrawal Agreement until 31 December whilst the UK and the EU attempt to negotiate a trade agreement to govern the UK’s future relationship with the EU. During this period, EU law continues to apply in the UK and the European Court of Justice continues to have power to decide claims in the UK involving the application of EU law. This includes UK procurement law which is derived from EU Directives but is already part of UK domestic legislation.
For now, UK businesses can bid for public contracts being tendered in EU Members States and the EU Commission, and EU businesses can bid for UK public contracts. Unless the EU and the UK reach a trade agreement on procurement, their rights to each other’s procurement markets will cease post 31 December 2020, save for those public contracts covered by the WTO’s General Procurement Agreement.
What happens to public tenders that are ongoing on 31 December 2020 or to Framework Agreements tendered for or entered before then? Helpfully, the Withdrawal Agreement provides a clear set of rules on what happens in those situations. EU procurement rules will continue to apply to:
Some public framework agreements being tendered now will involve call off contracts being procured many years after Brexit. For those contracts, the EU procurement rules will continue to apply and the European Court of Justice will continue to have final say over procurement disputes.