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:
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.
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