Examining Brexit through the GPA’s Lens: What next for UK public procurement reform?

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The United Kingdom has formally begun leaving the European Union (so-called Brexit). This has immersed the UK Government and EU Institutions in negotiations to disentangle the UK from EU law by the end of March 2019, and to devise a new legal framework for UK-EU trade. The UK will also have to adjust its trading arrangements with the rest of the world. In this context, public procurement regulation is broadly seen as an area where, ‘unshackled by EU law’, the UK would be able to turn to a lighter-touch and more commercially-oriented regulatory regime. There are indications that the UK would simultaneously attempt to create a particularly close relationship with the US, although recent changes in US international trade policy may pose some questions on that trade strategy. Overall, Brexit has created a scenario where UK public procurement law and policy may be significantly altered.

The extent to which this is a real possibility crucially depends on the framework for the future UK-EU trading relationship. Whereas “EU-derived law” will not restrict the UK’s freedom to regulate public procurement, the conclusion of a closely-knit EU-UK trade agreement covering procurement could result in the UK’s continued full compliance with EU rules. Nonetheless, this is not necessarily guaranteed and, barring specific requirements in future free trade agreements between the UK and the EU or third countries, including the US, the World Trade Organisation (WTO) Government Procurement Agreement (GPA) seems to be the only regulatory constraint with which future UK public procurement reform needs to conform. However, the UK’s position under the GPA is far from clear and we posit that the UK is not a member on its own right.

In our view, the UK will face a GPA accession process which can go from simple re-confirmation of current commitments to an opportunity to start afresh with new commitments. In this scenario, GPA members may see Brexit as an opportunity to obtain new concessions from the UK and the EU, which could be both in terms of scope of coverage or regulatory conformity. Further, given the current trend of creating GPA plus procurement chapters in free trade agreements, such as the US-Korea FTA, the GPA regulatory baseline will gain even more importance as a benchmark for any future reform of public procurement regulation in the UK, even beyond the strict scope of the GPA’s coverage. Given the diversity of GPA-compliant procurement systems (such as the EU’s and the US’), though, the extent to which the GPA imposes significant restrictions on UK public procurement reform is unclear. However, we argue that the current detailed regulation in the UK might itself limit deregulation due to the need to comply with international law.

This paper attempts to disentangle the multi-layered complexities of Brexit and explore the issues that Brexit has created in the area of international public procurement regulation, both from the perspective of ‘internal’ EU law-related issues and with regard to broader ‘external’ issues of international trade regulation, as well as to assess the GPA baseline regulatory requirements, and to reflect on the impact these may have on post-Brexit public procurement reform in the UK.
Original languageEnglish
Pages (from-to)1-33
Number of pages33
JournalPublic Contract Law Journal
Issue number1
Publication statusPublished - 23 Nov 2017

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