Shepherd and Wedderburn LLP
  February 18, 2019 - Scotland

Public Procurement in Scotland Post Brexit

The Scottish Government has published its first two Scottish Procurement Policy Notes (SPPNs) for 2019, both of which relate to public procurement in Scotland in the event that the UK exits the European Union without an agreement (a ‘no-deal’ Brexit), and has published accompanying draft legislation to implement the changes it proposes.

The first policy note (SPPN 1/2019) sets out the Scottish Government’s proposed changes to public procurement legislation. The second policy note (SPPN 2/2019) sets out further changes relating to the treatment of certain bidders based outwith the UK bidding for contracts in Scotland.

The SPPNs are clear that the changes proposed will not fundamentally change the process of advertising and awarding public contracts in Scotland. However, given that the existing legislation flows from European Directives, certain references and requirements would no longer make sense in the event that the UK leaves the EU without a deal. The changes are proposed by the Scottish Government pursuant to the European Union Withdrawal Act 2018 and are set out inThe Public Procurement etc. (Scotland) (Amendment) (EU Exit) Regulations 2019andThe Public Procurement etc. (Scotland) (Amendment) (EU Exit) Amendment Regulations 2019.

In terms of highlighting some of the key points in the draft legislation, the Scottish Government flags that:

  • procurement procedures themselves would remain fundamentally unchanged, including financial thresholds, the requirement to advertise contracts, observe certain minimum timescales and follow prescribed rules regarding technical specifications and award criteria;
  • the European Single Procurement Document (ESPD) is being re-named the Single Procurement Document;
  • Contracting Authorities will no longer need to publish contracts in the Official Journal of the European Union but will instead have to publish such contracts on a new UK e-notification system in order to comply with the World Trade Organisation (WTO) Agreement on Government Procurement (GPA) requirements. The requirement to publish notices on Public Contracts Scotland that flows from the Procurement Reform (Scotland) Act 2014 remains in place; and
  • the requirement to have recourse to e-Certis, the EU Database, is being removed and Contracting Authorities will no longer be required to exclude companies that have been convicted of fraud affecting the European Communities’ financial interests.

SPPN 2/2019 and the associated draft amendment regulations provide a further update in relation to ensuring equal treatment for bidders from GPA countries and from countries with which the EU has an international agreement covering procurement. SPPN 1/2019 originally applied an eight-month period during which contracting authorities had to ensure equal treatment for these bidders. SPPN 2/2019 updates the position so that the requirement to afford equal treatment to these bidders will remain in place for 18 months post exit.

The Scottish Government notes that the extension to the original eight-month approach is required to allow sufficient time for either the UK Government’s Trade Bill, or an alternative primary legislative vehicle, to become law to enable the UK to implement its membership of the GPA.

The position could change further over the next few weeks as we draw closer to the exit date and we will continue to provide updates as more information becomes available.