In June 2018, the UK officially opened negotiations on the access to the Government Procurement Agreement (GPA) in its own right. The GPA is an international agreement that governs the basic principles and fundamental rights and obligations that have to be observed when awarding public contracts in the territory of the GPA Contracting Parties. The Parties are obliged to ensure treatment for suppliers from other GPA Parties equal to the treatment they provide to domestic suppliers and cannot discriminate between suppliers from the GPA Contracting Parties. The UK proposed to take on commitments on the same level it now has as an EU member state, thus offering the highest possible market access that the GPA regime allows. On 27 February 2019, the GPA Committee endorsed the UK accession. Given the tense internal political situation in the last few months, the UK has not yet managed to ratify the agreement and has not yet submitted its accession documents. However, the UK is expected to finish the process by the end of transition period. Until the end of transition period the UK remains covered by the EU commitments as its member state.
The situation from 1 January 2021, i.e. after the end of transition period
The degree of mutual access to public procurement markets between the UK and the EU will depend on the outcome of negotiations of the economic part of the agreement on future relations, which will be conducted during transition period.
After the end of transition period, i.e. from 1 January 2021, the UK will become a third country in every aspect and all EU legislation will cease to apply to it completely. Ideally, by that time a comprehensive trade agreement covering the mutual access to the public procurement markets should be concluded. Such agreement should be more ambitious and allow for a broader access and cooperation than the GPA regime. If, however, the negotiations fail and the agreement on future relations is not reached or does not include provisions on public procurement, at least the GPA level of access will be ensured. In that case suppliers from the EU member states will still have almost the same level of access to public contracts awarded in the UK as they had when the UK was an EU member state.
If, for whatever reason, the UK does not accede to the GPA in time, there is no telling how will the UK contracting authorities act towards suppliers from the EU member states. However, the UK has transposed all the relevant EU law and there are no indications that it wants to change its legal order. Anyhow, no options can be ruled out in the future.
What happens with the ongoing cross-border procedures in case of those initiated before the end of transition period and completed after the end of transition period? EU law will cease to apply in the UK after the end of transition period and from that moment the UK will apply the UK law. From the point of view of the EU law, every procedure should be completed according to the law in force at the time when the contracting procedure was initiated. There is, however, a risk that the UK will not respect this and will, for example, apply some form of preferential treatment to domestic tenderers and restrictions to EU suppliers.
Access to legal instruments, including review measures and remedies: The UK will not be obliged to comply with the EU law on review procedures and remedies. Currently, there are no indications that the UK wants to reform any national legislation in this respect. In the short term, we can assume that the same review procedures as those applicable under the EU law will continue to apply. However, EU suppliers may loose access to UK courts. And even if EU suppliers will be allowed to participate in the review procedures after the transition period, there are no assurances that all standards and principles, required by EU Directives today, will be respected.
EU Notice to stakeholders: Withdrawal of the UK and EU rules in the field of public procurement
Government Procurement Agreement (GPA)