Procurement Policy Note 10/20: key changes and considerations for contracting authorities post the UK-EU transition period
What is the current impact for contracting authorities of the PPN?
On the 10th December 2020, the Cabinet Office published Procurement Policy Note 10/20 titled ‘Public Procurement after the Transition Period ends on 31 December 2020’ (the “PPN”), together with a set of FAQs providing further guidance. Copies of both can be found here.
The PPN aims to outline how public procurement will be affected from the 1 January 2021 and is largely a consolidated reminder of what has previously been notified in earlier PPNs (notably PPN 08/20) and the Public Procurement (Amendment etc.) (EU Exit) Regulations 2020.
When does the PPN apply?
The PPN applies to all contracting authorities, including Central Government Bodies, Executive Agencies, Non-Departmental Public Bodies, wider public sector, local authority, NHS bodies and utilities.
In essence, the PPN applies to all public procurements for goods, services or works which would currently be caught by the existing OJEU/TED regime pursuant the Public Contracts Regulations 2015, Utilities Contracts Regulations 2016 and Concession Contracts Regulations 2016
What action must be taken?
From 11pm on 31 December 2020 (the end of the UK-EU transition period), all new procurements are to be advertised through the UK’s new e-notification ‘Find a Tender’ service (“FTS”), which effectively replaces notifications through OJEU/TED.
Other existing notification portals such as Contracts Finder and MOD Defence Contracts Online, are unaffected by this change and will continue to operate in the same way as they do now.
What are the implications for procurements still ongoing at 1 January 2021?
All procurements which are planned to start before 1 January 2021, or which have already been commenced but will not be concluded before the 1 January 2021, must continue to follow the existing regime. This means that notices must continue to be published in the OJEU/TED, even after the FTS goes live. Similarly, contracting authorities must also continue to send details of contract awards to Contracts Finder (and the like) as required.
Additionally, the PPN advises that notices sent to OJEU/TED should subsequently be sent to FTS as well so that suppliers only have one place to look for UK opportunities. However, contracting authorities are not obliged to do so (for existing procurements) and in any event, publication must first be made in OJEU/TED.
Are future changes to the UK public procurement regime planned?
From the 1 January 2021, the UK is to accede to the WTO’s Agreement on Government Procurement (“GPA”) as an independent member and so for procurement purposes, UK companies will continue to have access to EU markets on similar terms to now, to the extent that procurement in the EU remains covered by the GPA’s coverage schedules.
The PPN also indicates that the UK has negotiated international trade agreements with non-EU countries which largely replicate the current rights and obligations that are in place with those countries with regards to public procurement.
However, the UK Government is considering whether further reforms should be made to the public procurement regulations and a Green Paper on the subject was published earlier this week. You can read our update on the Green Paper here.
The consultation on procurement reforms is open until 10 March 2021 and therefore, at least in the immediate short-term, there should be little difference for contracting authorities to adjust to when considering and running public procurement processes.
What is the current impact for contracting authorities of the PPN?
Other than the change to notifications mentioned in this article, the basic principles of the public procurement rules will remain the same after the UK-EU transition period for now.
A few of the other key points to note from the PPN are outlined below:
- Threshold values have not changed, other than to represent the value in pounds sterling as opposed to euros. The values will continue to be aligned with the GPA, with the next scheduled review due to take place by January 2022.
- If not already done so, contracting authorities who currently use a third-party provider to publish notifications (i.e. an eSender) should check that their provider will be ready and able to switch to FTS from 1 January 2021. A list of providers confirmed as ready can be found here.
- The PPN confirms that contracting authorities cannot simply choose to “Buy British”. All suppliers should continue to be treated equally and fairly through open competition.
- The use of Voluntary Ex-Ante Transparency Notices is still permitted and will be built into FTS.
Discover more
Related expertise
You may be interested in...
Legal Update - Procurement Act
Procurement Bill: Competitive flexible procedure, how will this work in practice?
Legal Update - Procurement Act
Procurement Bill - Are they still playing ping-pong?
Legal Update - Procurement Act
Procurement Act 2023: Getting Ready for Reform - the countdown is on!
Legal Update
PPN 08/23: using standard contracts
Press Release
Browne Jacobson advising the Welsh Government on the delivery of significant number of renewable energy projects
Legal Update
Guidance on contract changes: James Waste Management LLP v Essex County Council
Legal Update
Case summary: the importance of bringing a procurement claim within the appropriate time limits
Legal Update - Procurement Act
New obligations for Welsh public bodies on social partnership and socially responsible procurement
Article
Challenging procurement decisions by way of Judicial Review - the key principles
Legal Update
Australia and New Zealand Free Trade Agreement drives changes to the Public Procurement rules
Published Article
Amendments to Procurement Bill: Navigating sanctions and supplier bans and impact on the construction sector
On-Demand
'Getting ready to reform – preparing for the new Procurement Bill' webinar
Legal Update
Changes to the Standard Selection Questionnaire effective from 1 April 2023
Legal Update - Procurement Act
Automatic suspension and procurement law
Press Release
Browne Jacobson collaborates with The GLAA and University of Nottingham to tackle modern slavery and human trafficking
Legal Update - Public matters newsletter
Public matters - February 2023
Legal Update - Procurement Act
Procurement Bill debarment regime and ECHR issues
Published Article
Digital Twin Technologies: key legal contractual considerations
Guide - Procurement Act
Public procurement: key facts and compliance considerations
Published Article
Reaching cloud nine? Public procurement for cloud-based services
Opinion - Procurement Act
Procurement Bill - what’s new in 2022?
Legal Update
CCGs’ conduct “sufficiently serious” for award of damages in High Court procurement case
This case provides a reminder to contracting authorities that whilst the bar for an award of damages in procurement cases is high, following the Supreme Court ruling in Energy Solutions EU Ltd v Nuclear Decommissioning Authority [2017] 1 WLR 1373, it is not insurmountable when a contracting authority has acted with disregard to the Public Contracts Regulations 2015 (PCRs). There is also further guidance as to the use of frameworks
Legal Update - Procurement Act
Pre procurement planning the importance of early market engagement
On-Demand - Procurement Act
Get ready for reform: The new Procurement Bill
Legal Update - Procurement Act
The Procurement Bill - selection, exclusion, conflict of interests and debarment
Legal Update
The Introduction of the Social Partnership and Public Procurement (Wales) Bill by the Welsh Government
Published Article
Sustainability in construction
The climate emergency has reached a point where real and substantial damage is being caused to both the planet and society. There has been a shift from planning and theorising the most effective solutions, to a phase where practical, efficient, and sustainable solutions are required at speed.
Opinion
Responding to Grenfell – Slow progress is better than none
As the Grenfell Inquiry continues, how have the Phase 1 recommendations changed the fire safety and building safety landscape?
Legal Update
Modern Slavery and the NHS – new challenges on the horizon for NHS bodies and their suppliers
According to a report published by the Financial Reporting Council in April, modern slavery generates an estimated US$150 billion annually and encompasses 40 million people in slavery globally.
Legal Update - Procurement Act
Public procurement: Plus ça change, plus c’est la même choses
Legal Update
Contracts with Russian and Belarusian suppliers
We are all aware of the unfolding situation in Ukraine following the invasion of Russian forces, and the support afforded to Russia by Belarus. The UK Government has, in response to the conflict, issued sanctions on companies and individuals.
On-Demand - Procurement Act
Procurement Bill - key changes and how will it affect you?
On-Demand
Commissioning Health Tech in an ICS World
We invite you to watch our on-demand webinar which looks into how healthtech is commissioned from a health and tech perspective.
Legal Update
Progress of procurement reforms
As we look ahead to planned and potential legal developments in 2022, one area we have been keeping a close eye on is the progress of the Government’s planned reforms to procurement law.
Legal Update
R (Good Law Project) v Minister for the Cabinet Office [2022] EWCA Civ 21
Published Article
Implications of the amended public procurement thresholds
Legal Update
Procurement Policy Notice 09/21: Update to legal and policy requirements to publish procurement information on Contracts Finder
The Cabinet Office updated Procurement Policy Notice 09/21 and accompanying guidance in December 2021, which replaces PPN 07/21. We outline its scope, associated guidance and impact for contracting authorities.
Legal Update
Exclusion grounds under the new procurement regime
A range of questions were subject to consultation on the grounds for excluding bidders from a procurement process. We consider some of the key proposals which will be taken forward in the new regime.
Legal Update
New year, new Brexit transport rules
From 1st January, new import rules come into effect, with potential for significant delay, disruption and cost for importers and exporters.