The UK Technical Note on Other Separation Issues [Public Procurement]

The UK Government has just published a technical note detailing its approach in phase 2 to a number of different areas, including ongoing public procurement procedures.

The Government disputes the EU's assumption that Union law should be applicable to ongoing procedures and states instead that "in practical terms" the procedures should be carried out under the applicable *national* law. This is slightly disingineuous since it implies that only national rules are relevant for public procurement contracts. That is certainly not the case since contracts not covered by the EU public procurement Directives can nonetheless be subject to EU principles in certain situations (more here and here) as well as jurisprudence from the CJEU. Eventually there may be situations as well whereby direct effect of provisions from the EU Directives would be relevant as well. Neither are "national law" in the context presented by the Government in this technical note.

There are not many differences in the position expressed today by the UK Government and that of the Union a few days ago. But there are two points worth noting. 

In para 32 the Goverment (rightfully) asks for reassurances UK businesses will be able to bid for EU contracts (but strangely not those tendered in other Member States?) for procedures launched before the withdrawal. This is a reasonable request but one that requires reciprocity...

In the same paragraph, the Government also calls for these 'transitional arrangements' to be extended to existing contracts (at EU and Member State levels) instead of only ongoing procedures. When the Commission published its paper last week I noted that the 'transitional arrangements' would end with contract award notice being published and, by definition, did not cover the contract itself. While it is true most procurement rules are connected with the award stage, I made a point about Arts. 70 to 73 of Directive 2014/24/EU therefore not being applicable any longer. 

Personally, I agree with the UK Government view that contract performance for ongoing contracts at the date of exit should be subject to the current procurement rules. But that is a mix of EU and national rules...