Challenges and Regulatory

Solutions: Public

ProcurementDr Albert Sanchez-Graells

Reader in Economic Law

EURO-CEFG, MaCCI and the University of Mannheim Joint Conference “Trade Relations after Brexit: Impetus for the Negotiation Process”. Mannheim, 25-26 January 2018

An unavoidable caveat

Without knowing the nature of the overall model for

future EU-UK relationships, this is largely guesswork

Discussion of regulatory issues in the transition

period particularly speculative, so focus on ‘post-

disconnection’ (if there is to be one)

Agenda

‘External dimension’: WTO GPA-related issues and need for coordinated strategy

‘Internal dimension’: functional approach

• Substantive convergence

• Standards and transparency

• Administrative cooperation

• Cross-border cooperation

• Remedies

• Instrumentalisation of procurement?

‘External dimension’

WTO GPA covered procurement

• Not only UK position affected (requires fresh accession)

• EU position affected due to reduced value of covered procurement

• To avoid disruption, EU-UK should establish a joint strategy in

their negotiations with other WTO GPA members—particularly as

to ways in which to renegotiate coverage (splitting may not do)

‘Internal dimension’

This will not only be affected by negotiations between the EU and

UK, but also by the outcome of the WTO GPA adjustment

A big unknown concerns whether UK plans significant reform of

their domestic procurement rules

• WTO GPA baseline not significantly different from EU regulatory

baseline (except in qualification, some aspects of negotiations and

some aspects of remedies), so limited scope for reform

Substantive convergence

Difficulties derived from the precarious position of future CJEU

case law may be particularly relevant in the area of procurement

• EU (Withdrawal) Bill, clause 6(2) problematic

• Possibility of creating obligation to follow new case law?

Additional difficulties derived from the Commission’s increasing

use of soft law and guidance (eg Commission’s Oct 2017 package)

Standards and

transparencyHow to ensure transparency of opportunities

• Access / use of OJEU

(interconnection with Contracts Finder?)

• Use of CPV

Use of common technical standards (largely

as discussed by Prof F Kainer yesterday)

Administrative

cooperationESPD

e-Certis

Development of standards for e-procurement

General issues of mutual recognition

• Including of specific certificates (eg environmental

management -> back to standards)

Enforcement and governance

Cross-border

cooperationJoint and collaborative procurement

Impact on possibilities for CPBs to engage in cross-border sales

• Incidentally, future issues derived from subjection of CPBs to

competition law

Large infrastructure projects and other initiatives

Remedies

Current uncertainty on procurement remedies

• Faulty on EU-end due to non-revision of

remedies directive post-2014 reform

• Current clash between UKSC and EFTA Ct

• On-going discussion of model in UK

Preliminary references to CJEU

Instrumentalisation of procurement?

[Under the radar?]

Industrial policy by another name

• Issues around social value / localisation

• State aid implications / interaction

UK’s peculiar position concerning ring-fencing of contracts

Further details

P Telles & A Sanchez-Graells,

‘Examining Brexit Through the GPA's

Lens: What Next for UK Public

Procurement Reform?’ (2017) 47(1)

Public Contract Law Journal 1-33.

https://ssrn.com/abstract=3076543

Thank you for your

attention & stay in

toucha.sanchez-graells@bristol.ac.uk

@asanchezgraells

www.howtocrackanut.com