The access of the UK to the Government Procurement Agreement (GPA)
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 need 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 the same level of commitments it had 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 postponement of the UK departure from the EU and the late start of the transition period, the planned timetable for the access was affected as well. During the spring of 2020 the UK formally revised its offer and the GPA Committee endorsed the UK accession again on 7 October 2020. Finally, by the end of the transition period, the UK managed to ratify the agreement and as of 1 January 2021 is a party to the GPA in its own right.
Public procurement in the Agreement on Trade and Cooperation
The trade part of the Agreement includes a chapter on public procurement (Title VI., Articles PPROC.1 - PPROC.19) and an annex (PPROC.1) setting out the market access commitments of both parties. The objective of the chapter is to guarantee suppliers of each party the highest possible access to participate in public procurement procedures and to enhance the transparency of public procurement procedures.
The chapter takes inspiration from the GPA and incorporates its provisions, but it also includes some rules that go beyond the level of cooperation set out in the GPA. The Agreement for example has more detailed provisions on the use of electronic means in procurement. Considering that the digitalization of public services (and other fields) is developing fast in the last few years, this is certainly a step in the right direction.
The aim of these provisions is to support the use of electronic means to the widest extent practicable. GPA contains a provision on electronic means as well. It is, however, slightly outdated and insufficient to keep up with the advances in this area. The Agreement furthermore contains more detailed provisions on other elements of the procurement procedure (e.g. registration systems for suppliers, abnormally low prices, environmental, labour and social considerations). With regard to abnormally low prices, if a procuring entity receives a tender with a price that is abnormally lower than the prices in other tenders, it may verify with the supplier whether the price takes into account the grant of subsidies.
Regarding the possibility to take into account environmental, labour and social considerations, the Agreement enumerates these considerations expressly while the GPA contains only an open list of evaluation criteria (which, however, theoretically cover environmental, labour and social criteria as well). The Agreement also contains more detailed rules on domestic review procedures, as opposed to limited rules in the Article XVIII of the GPA, and on the principle national treatment, which widens the scope of the Article IV of the GPA on the principle of non-discrimination. In the end of the chapter the Agreement sets out the rules on modification or rectification of market access commitments of the parties and on consultations and dispute resolution.
Government Procurement Agreement (GPA)
Trade and Cooperation Agreement
Notice to stakeholders on the withdrawal of the UK from the EU in the field of public procurement